Contractual duty of confidence takes precedence over free speech: Naomi Campbell v Vanessa Frisbee

Mr Justice Lightman gave judgment last week in an action by Naomi Campbell against Ms Vanessa Frisbee, who had been engaged by Naomi Campbell’s agent on a weekly basis to provide services to Naomi Campbell. In her contract Ms Frisbee undertook to keep confidential any information she learned about Naomi Campbell during or as a result of her work for her.

Relations between Naomi Campbell and Ms Frisbee broke down after what Ms Frisbee alleged was a violent assault on her by Campbell. Ms Frisbee claimed to have accepted this assault as a repudiatory breach of the contract for her services, allowing her to sell details of Naomi Campbell’s personal life to the News of the World for £25,000, via Max Clifford. Naomi Campbell sued Ms Frisbee after publication of the resulting article.

The arguments put forward by Ms Frisbee, that the (alleged) repudiatory breach of contract had discharged her from her obligations of confidence and that there was sufficient public interest in Naomi Campbell’s personal life to justify departure from these obligations, were both rejected. The judge held that where there was a contract for services there was no conceivable basis for suggesting that a repudiatory breach entitled the provider of the services to be released from express or implied obligations of confidentiality. He drew an analogy with doctors or lawyers whose duties of confidentiality undoubtedly survived any repudiatory breach by the client.

Mr Justice Lightman concluded that there was no public interest in the claimant’s personal life sufficient to justify departure from those obligations. He also made it clear that contractual obligations of confidentiality are not “sacrosanct”, and therefore that the common law recognised some encroachments on it via Article 10. However, he said that there was also a substantial public interest in requiring parties to comply with contractual obligations not to disclose confidences. For the defence of public interest to override an express obligation of confidence, as a rule, the information must go beyond being interesting to the public: there must be a pressing public need to know.

In contrast to the judgment of the Court of Appeal in A v B & C (see our early warning of last week), here there were contractual obligations which had been freely entered into by the defendant in the proceedings. It appears that the Court will err on the side of upholding confidentiality obligations in those circumstances, and that public interest considerations as to the public’s right to know will be construed more strictly where there is a balancing public interest in compelling people to comply with their contractual obligations.

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