Bull vDesporte

A misuse of private information claim requires two distinct inquiries. First, the court asks objectively whether the claimant had a reasonable expectation of privacy. Secondly, it balances the claimant’s Article 8 rights against the publisher’s Article 10 rights.

Truth or falsity does not determine whether information is private, although it may bear on the public-interest balancing exercise. Intimate details of sexual activity ordinarily attract a high degree of Article 8 protection. General curiosity or criticism does not constitute a legally recognised public interest capable of outweighing that protection. A permanent injunction may restrain republication even where information has achieved limited public circulation.

The claimant, a lottery winner, brought claims for misuse of private information and copyright infringement against a former intimate partner. The defendant had written and published a book describing their relationship and containing passages concerning sexual activity, the claimant’s former marriage and children, and his physical health. The book also reproduced four photographs sent privately during the relationship.

The claimant sought damages and permanent injunctions. The defendant relied on consent, public interest, freedom of expression, delay, and alleged permission to use the photographs. An interim non-disclosure order had previously been granted. The central issues were whether the information was private, whether publication was justified under Article 10, and whether the photographs had been used without permission.

1. Jurisdiction. Although copyright claims must be started in an appropriate Chancery jurisdiction under CPR r 63.13 and PD63 [16.1], the High Court’s jurisdiction is generally indivisible. By virtue of s 4(3) of the Senior Courts Act 1981, a Queen’s Bench judge could try this simple copyright claim.
2. Misuse of private information. The court applied the two-stage approach in McKennitt v Ash [2008] QB 73. The claimant had a reasonable expectation of privacy in intimate sexual details, information about the breakdown of his marriage and arrangements concerning his children, and information about his health. The assessment was objective and took account of all the circumstances.
3. The claimant had not consented to publication. Consent required informed agreement to publication of substantially the same matter as was actually published. The defendant’s misleading description of the proposed book and refusal to provide the manuscript could not establish consent. The information had not entered the public domain before publication.
4. The Article 8 and Article 10 rights required an intense and proportionate balancing exercise. Neither right had automatic precedence. The private information ranked highly in the Article 8 hierarchy, while publication of intimate sexual details for curiosity, criticism, or to tell a personal story was at the bottom end of Article 10 protection. There was no legally cognisable public interest sufficient to justify publication of the information. The claimant’s privacy claim therefore succeeded.
5. Truth or falsity was irrelevant to whether the information was private, though it could be relevant to public interest. A permanent injunction was justified because damages were inadequate, further publication was threatened, and the information had only entered the public domain to a very limited extent. The defendant’s republication remained capable of constituting further misuse.
6. Copyright. The claimant owned copyright in the photographs and had not granted permission for their publication. The copyright claim succeeded. Damages were assessed at £50. Privacy damages were £10,000, with aggravated damages of £2,500. The photograph injunction was adjourned, subject to undertakings by the defendant.

The judgment describes an interim non-disclosure order granted by His Honour Judge Moloney QC on 20 December 2017. No appeal or other appellate decision is stated.