Privacy rights take precedence over freedom of speech in Lady Archer confidentiality action

Lady Archer was granted an injunction by the High Court to stop her ex-PA from disclosing confidential details concerning her employment with Lady Archer, and was also awarded £2,500 damages for breach of confidence and injury to her feelings in the judgment of Mr Justice Jackson, which while delivered on 3 July, has only just been published.

Before the introduction into our jurisprudence of Article 10 of the European Convention on Human Rights, this would have been a straightforward action by an employer against an ex-employee to enforce confidentiality provisions of the contract of employment. However, inevitably in such actions, where the press is waiting in the wings to pick up commercially valuable detail about high profile individuals such as Lady Archer, the provisions of Article 10 are deployed, along with those of Section 12 of the Human Rights Act 1998 which stresses the importance of the convention rights to freedom of expression.

The first decision to be made by the judge was who owned the ‘working diaries’ kept by Miss Williams during the time that she worked for the Archer household. He found that they were the property of Lady Archer for the following reasons:

  1. She had paid for them.
  2. Ms Williams had been required to maintain them as part of her duties as a PA.
  3. The overwhelming majority of the entries in the diaries related to Lady Archer.
  4. The personal information included by Ms William was via her own choice only.

The next decision that the judge had to make was whether to grant Lady Archer the injunction she was seeking. After considering the relevant legal principles, including the conflicting provisions of Articles 8 and 10, he rejected Ms Williams’ defence based on the Human Rights Act 1998 and Article 10 of the European Convention, and granted an injunction largely in the terms sought.

As to an award of damages, the judge assessed the general damages at £2,500, which was the same amount awarded to Naomi Campbell in her action against the Daily Mirror.

Although the judge found that Lady Archer was not the type of ‘role model’ referred to in the Court of Appeal decision in the Gary Flitcroft case (A v B), Lady Archer clearly is the type of individual against whom public interest Article 10 arguments can be run. Here, however, the court rightly took the view (as it did in Naomi Campbell’s successful action against her PA, Vanessa Frisbee – see our October 2002 early warning), that where someone has undertaken a duty of confidentiality as part of a contract of employment (or services), then public policy requires that those obligations be enforced by the court.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.