In a draft judgment by Lord Phillips MR handed down yesterday and now available on Lawtel (the final version is expected next month), the Court of Appeal emphatically upheld the first instance decision of Mr Justice Blackburne granting summary judgment to the Prince of Wales for breach of confidence and copyright infringement in his private journals by the Mail on Sunday. Copies of these had been provided to the newspaper (via an intermediary) by an employee of Prince Charles in breach of her contract of employment.
The Factual Background
The journals were described by Lord Phillips as “a description of Prince Charles’ participation in the events that marked the handing over of Hong Kong. These include a banquet which the Chinese President attended which Prince Charles describes in a manner which is disparaging of the formalities and the behaviour of the Chinese participants“.
Unsurprisingly, the employment contracts of each of those in Prince Charles’ service provided that any information in relation to him that was acquired during the course of employment was subject to an undertaking of confidence. There was an issue between the parties as to the extent to which the journals were sent to third parties by Prince Charles. The evidence submitted on behalf of Prince Charles was that the recipients totalled 21 which only included one MP (Nicholas Soames). The newspaper estimated that between 50 and 75 people would have received the journals, including politicians, media people, journalists and actors. However, since it was not disputed that these recipients (apart from Jonathan Dimbleby (with the Prince’s express permission)) had not disclosed the contents of one of the journals, the newspaper’s evidence appears inherently unlikely to be true.
It was however accepted for the purposes of the original hearing, as were other areas of contested evidence which the Court of Appeal also accepted for the purposes of the appeal. This was accepted despite submissions by the newspaper that because of conflicts of evidence the matter should go to full trial. It is not difficult to see why that submission was put forward, since the assumption on the part of the newspaper would have been that the prospect of being cross examined in the witness box would be sufficient to deter the Prince of Wales from taking his case forward. This may have been a consideration in the Court of Appeal’s decision.
The source of the leak was an employee of Prince Charles’ Private Office between 1998 and 2000 (Ms Goodall). She had been dismissed following a disciplinary hearing, and had then (via a friend) supplied the Mail on Sunday with typed copies of eight of the journals and hoped that the newspaper would purchase them from her. Her subsequent request to the Managing Editor of the Mail on Sunday to return the copy journals was only partially successful, since the newspaper retained a set of copies and subsequently published extracts anyway.
The Legal Context
The Court observed how the UK courts had developed a law of privacy out of the ancient law of confidentiality by recognising the effect of Article 8 of the European Convention on Human Rights (“ECHR”), and that it had reached the point where the tort was now “better encapsulated.as misuse of private information“. It observed that the Mail on Sunday “was aware that the [Prince’s] journals were disclosed in breach of confidence“. The Court also observed that Article 10 provides that freedom of expression “may be subject to such formalities, restrictions and penalties as prescribed by law and necessary in a democratic society for preventing the disclosure of information received in confidence“. It was therefore necessary to give weight to the fact that the information in this case had been received by Ms Goodall in confidence, “and, furthermore, under a contractual duty of confidence“.
As the Court observed:
“The present case raises the question of whether the principles permitting publication of information disclosed in an obligation of confidence require to be revised in order to give full effect to Article 10 rights“.
Were the Journals Confidential?
The Court had first to decide whether the journals were confidential and, if so, were the contents private? In reviewing the current state of the law in this area, it reminded itself of two important dicta from Douglas v Hello:
“It seems to us that information will be confidential if it is available to one person (or a group of persons) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it shall become available to others.” (para 55)
What is the nature of “private information“? It seems to us that it must include information that is personal to the person who possesses it and that he does not intend that it shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria.
The Court also cited two important dicta from Campbell v MGN Limited:
“Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”
“a duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected“.
The Court concluded that the issue was clear cut in respect of Prince Charles’ journals:
“They were set out in a journal in his own hand. They were seen by his staff, who were under an express contractual obligation to treat their content as confidential. They were sent to selected recipients under cover of a letter signed by Prince Charles in an envelope marked “Personal and Confidential”. The journals were paradigm examples of confidential documents. They also satisfied each of the tests of confidential and private documents to which we have referred above.”
The Court went on to observe that this was also evident to the Mail on Sunday since the newspapers headline was that his journal “reveals his extraordinary and historic journal” (emphasis added by the Court). The fact that it had been conceded that for the purposes of this litigation Prince Charles gave Mr Dimbleby “free access to his journals and unconditional permission to reproduce those passages that he wished … [did not mean] that Prince Charles could not reasonably expect that, in the absence of similar authorisation, the content of subsequent journals would remain confidential.”
Must the Laws of Confidence be revised to accord with Article 10?
The Court then returned to the question of whether this duty of confidence must be revised to give effect to Article 10. The Court reviewed the relevant ECHR and House of Lords case law, citing in particular the observation by Lord Steyn in Re S (a child) where he observed:
“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each“.
The Court then reviewed the exceptions that already existed in the UK to the rights enjoyed in confidential information, and specifically approved this dictum of Mr Justice Eady in McKennitt v Ash:
“I would nevertheless accept that Mr Browne is broadly correct when he submits that for a Claimant’s conduct to “trigger the public interest defence”, a very high degree of misbehaviour must be demonstrated. Relatively trivial matters, even though falling short of the higher standards people might set themselves, will not suffice.”
The Court went on to observe the public interest “in the observance of duties of confidence”:
“Those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be confident that they can disclose, without risk of wider publication, information that is legitimate for them to wish to keep confidential.”
The Court then set out the correct test for when that duty of confidence should be overridden:
“the test is . whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”. It is a test of proportionality . It is not enough to justify publication that the information in question is a matter of public interest.”
The Court gave an example of a disloyal typist disclosing the content of a budget speech. Clearly the content of a budget speech was of public interest but it was equally clear that there was a public interest in confidence being retained in it. The test was therefore whether “in all the circumstances, it is in the public interest that the duty of confidence should be breached“.
The Court answered the question in this case with an emphatic no, and also summarily rejected the newspaper’s appeal on the issue of copyright. It thereby upheld the decision made by Blackburne J granting Prince Charles summary judgment. In so doing, the Court recognised that even those in the most stark glare of public interest must be accorded some protection of (to quote Lord Hoffman in Campbell) “human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to esteem and respect of other people“.