WXY v Gewanter & Ors

Information may retain its private or confidential character despite limited earlier publication where it remains inaccessible to the public. A claim for misuse of private information requires first an assessment of whether there is a reasonable expectation of privacy, followed by a proportionality balance between Article 8 and Article 10 rights.

A claimed public interest in allegations of wrongdoing depends materially on the credibility of the allegation and the reliability of its source. A mere, possibly false allegation will ordinarily justify disclosure, if at all, to an appropriate investigative authority rather than publication to the world. Threatening or publishing private information to obtain financial advantage may amount to harassment.

The claimant, anonymised as WXY, sought permanent injunctions, damages and other relief against a public relations consultant, his company and their client. She alleged that the defendants had published or threatened to publish private and confidential information, including allegations concerning a sexual relationship, perjury, terrorism, financial dealings and her identity in other proceedings.

The principal claim proceeded against the third defendant after his application to adjourn the trial was refused and he ceased participating. The first and second defendants’ cases were adjourned because of the first defendant’s ill health. The issues included privacy, confidentiality, public interest, the effect of limited publication, responsibility for the publications and harassment.

1. Privacy and confidentiality. The claimant established that the information had the necessary quality of confidence, had been imparted in circumstances importing an obligation of confidence, and had been used or threatened to be used without authorisation. The information remained inaccessible enough to retain protection, notwithstanding references on obscure websites or limited exposure. The identity of an anonymised claimant in proceedings also had the basic attribute of inaccessibility.
2. For misuse of private information, the court first considered whether the claimant had a reasonable expectation of privacy and whether Article 8 was engaged. It then balanced the claimant’s Article 8 rights against the defendant’s Article 10 rights. Neither right had automatic precedence. The court applied an intense focus on the specific rights claimed and proportionality, having regard to Human Rights Act 1998, section 12(4).
3. Public interest. No public interest justified publication of the information concerning the claimant’s dealings with the third defendant, proposed financial assistance or identity in other proceedings. The allegations of perjury and terrorism came from M, whose changing account and financial motive made him an unreliable source. The allegations were therefore not credible public-interest material. Any legitimate public interest in suspected criminal conduct could be addressed by disclosure to the relevant police or security authority, rather than publication to the world.
4. Harassment. The third defendant’s postings, threatened postings and media contacts formed a course of conduct which was unreasonable, oppressive and unacceptable. He knew, or ought to have known, that it amounted to harassment. The conduct was undertaken to pressure the claimant into securing financial advantage for him and did not fall within the reasonableness defence in section 1(3)(c) of the Protection from Harassment Act 1997. He also failed to establish the statutory defence based on preventing crime under section 1(3)(a).
5. The claim against the third defendant succeeded. Unless restrained, he was likely to resume publication or threats to publish and continue harassing the claimant. The interim injunctions remained in force pending a consequential hearing.

The judgment records several earlier interlocutory applications. High Court: Maddison J granted an interim injunction on 9 September 2009. Tugendhat J refused the third defendant’s adjournment application on 27 May 2011. The Court of Appeal refused permission to appeal that order and the refusal to vary the interim injunctions on 6 July 2011.

High Court (Queen’s Bench Division): the present trial judgment determined the claim against the third defendant. The cases against the first and second defendants were adjourned.