Joseph Alexander Mullen v Oliver Lyles

Misuse of private information is determined by a fact-specific two-stage inquiry. Truth or falsity is not, by itself, determinative at either stage. It is relevant where the circumstances or the competing Article 10 interests require it, particularly at Stage 2.

Information concerning criminal conduct does not automatically fall outside privacy protection. The court must consider the nature, timing, setting and basis of the alleged conduct, including whether it was public, historical, observed or falsely described. Sexual activity may remain private even where it occurs in a public setting. At the strike-out stage, the claim must be assessed on the claimant’s facts taken at their highest. Where the outcome depends on disputed circumstances, the claim should proceed to a fact-finding trial.

The Claimant appealed against an order of Deputy Master Marzec striking out his misuse of private information claim. The linked defamation claim remained in existence. The alleged publications stated that the Claimant had sexually assaulted a woman and a man at a music festival.

The Claimant’s case was that the sexual interactions were consensual, occurred in small tented areas, and were later falsely described as assaults by the Defendant, who communicated the allegations to business associates. The Defendant relied on truth, public conduct, limited publication and the alleged criminal character of the conduct.

The central issues were whether the information could attract a reasonable expectation of privacy and whether the claim was bound to fail at the pre-trial stage.

1. Appeal allowed; cross-appeal dismissed. The order striking out the misuse of private information claim was reversed.
2. Misuse of private information involves two stages: whether the claimant had an objectively reasonable expectation of privacy, and, if so, whether that expectation was outweighed by the user’s freedom of expression. Both stages require assessment of the relevant circumstances and features of the case.
3. The principle that truth or falsity is not ordinarily the issue at Stage 1 is not a rigid, all-embracing exclusionary rule. Truth may be relevant to identifying the circumstances in which the information arose and may be relevant at Stage 2 when assessing the Article 10 justification for publication.
4. Information about criminal conduct does not automatically lack privacy protection. The court must distinguish, among other things, contemporaneous public criminality, historical conduct, and information concerning victims or witnesses. Publicly paraded criminal conduct may provide a paradigm case of no reasonable expectation of privacy, but the principle does not extend automatically to every communication about alleged criminal conduct, especially where the information is said to be false.
5. Sex-life is high-order private information, but the public or private setting is not governed by a bright-line rule. Sexual activity in public may fall within private life, depending on all the circumstances. The court must avoid deciding the relevant public-private boundary without the factual findings required by trial.
6. The Judge’s reasoning treated the truth principle and the criminal-conduct example as rigid rules and thereby failed to conduct the required fact-specific assessment. On the Claimant’s case taken at its highest, the circumstances were disputed and the claim was not bound to fail. Any concern that MPI was being used merely to litigate falsity or to circumvent defamation principles was not advanced as an abuse-of-process case.
7. The Claimant was given permission to amend his Particulars of Claim. The Defendant was given permission to amend his Defence. The Claimant received 40% of the costs summarily assessed below, appeal costs were to be subject to detailed assessment absent agreement, and payment was deferred until conclusion of the proceedings or further order.

• High Court (King’s Bench Division): Deputy Master Marzec struck out the misuse of private information claim but declined to strike out the linked defamation claim.
• High Court (King’s Bench Division): The appeal succeeded, the cross-appeal failed, and the strike-out order was reversed.