HRH Prince of Wales v Associated Newspapers Ltd
[2006] EWCA Civ 1776, [2006] All ER (D) 335 (Dec)
Court of Appeal, Civil Division
Lord Phillips CJ, Sir Anthony Clarke MR and May LJ
21 December 2006
When considering whether it is necessary to restrict freedom of expression to prevent disclosure of information received in confidence, the test is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.
Hugh Tomlinson QC and Lindsay Lane (instructed by Harbottle & Lewis) for the claimant.
Mark Warby QC and Pushpinder Saini (instructed by Reynolds Porter Chamberlain LLP) for the defendant.
The claimant wrote eight journals recording his impressions and views in the course of his overseas tours, including a tour to Hong Kong. Copies of the journals were provided to the defendant newspaper publisher (the newspaper) by an employee of the claimant in breach of her contract of employment. The newspaper published extracts from the Hong Kong journal, including some disparaging comments made by the claimant in respect of Chinese diplomats.
The claimant brought an action for breach of confidence. The newspaper denied that the content of the journal was confidential. The claimant contended that the publication amounted to an interference with his right to respect for his private life and his correspondence under Art 8 of the European Convention on Human Rights (the Convention). The newspaper denied the alleged breach and contended that any interference was justified under Art 8(2) to protect its rights to freedom of speech under Art 10 of the Convention. The claimant in turn argued any interference with Art 10 was justified under Art 10(2).
The judge awarded summary judgment to the claimant in relation to the journal and the newspaper appealed.
LORD PHILLIPS (giving the judgment of the court):
In this case the journals were paradigm examples of confidential documents. They also satisfied each of the tests of confidential and private documents in the authorities.
The newspaper argued that the content of the journal was not confidential and private, on the grounds:
(i) the subject of the journal consisted of events that were in the public domain;
(ii) the relaxed way in which the journals were treated and the width of their circulation belied an expectation that they would
remain private; and
(iii) having regard to the nature of the content of the journal any expectation of privacy on the part of the claimant was unreasonable.
While most of the events described in the journal were in the public domain, what were not in the public domain were the claimant’s comments about them, and it was those that were the essence of the publication in the newspaper.
If the circulation of the journals was as wide as the newspaper had suggested, it could not, having regard to the circumstances, lead to a conclusion that the claimant could not have reasonably expected the contents of the journal to have been kept confidential.
His Lordship turned to the suggestion that, having regard to the nature of the content of the journal, any expectation of the claimant that it would remain confidential was unreasonable.
Those matters did not go to the question of whether the content of the journal was confidential but rather to whether that confidentiality would have to give way when weighed against the rights of freedom of expression enjoyed by the newspaper and its readers. There was a distinction, not always drawn, between the question of whether claimants could reasonably expect those in a confidential relationship with them to keep information confidential, and whether claimants could reasonably expect the media not to publish such information if the duty of confidence was breached. With the latter, it might be argued that if the circumstances were such that Art 8 rights of privacy in relation to particular information were likely to be trumped by Art 10 rights of freedom of expression, then it could not be reasonable to expect the information to remain confidential. Such an approach blurred the question of whether Art 8 was engaged with the question of how the balance should be struck between Arts 8 and 10. The better approach was to consider the points made by the newspaper in relation to the subject matter of the journal in the context of the competition between Arts 8 and 10.
His Lordship considered A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 and Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 All ER 995. He concluded that the test to be applied when considering whether it was necessary to restrict freedom of expression to prevent disclosure of information received in confidence was not simply whether the information was a matter of public interest but whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached.
The court would need to consider whether, having regard to the nature of the information and all the relevant circumstances, it was legitimate for the owner of the information to seek to keep it confidential or whether it was in the public interest that the information should be made public.
In applying the test of proportionality, the nature of the relationship that gave rise to the duty of confidentiality might be important. Different views had been expressed about whether the fact that there was an express contractual obligation of confidence affected the weight to be attached to the duty of confidentiality. The extent to which a contract added to the weight of duty of confidence arising out of a confidential relationship would
depend upon the facts of the individual case.
His Lordship turned to the facts of the case. He concluded that the significance of the interference with Art 8 rights effected by the newspaper’s publication of information in the journal outweighed the significance of the interference with the newspaper’s Art 10 rights.
The appeal would be dismissed.
