A McKennittandothers Ashandanother€¦ · balance between articles 8 and 10 would not be...

Court of Appeal

McKennitt and others vAsh and another

[2006] EWCACiv 1714

2006 Nov 21, 22, 23; Buxton, Latham and Longmore LJJDec 14

Con�dential information � Disclosure � Public interest � Defendant�s bookdisclosing details of claimant musician�s private life � Author formerly closefriend of claimant �Whether breach of con�dence �Whether violation of rightto privacy � Whether author�s right to freedom of expression outweighingclaimant�s right to private life � Whether court entitled to apply previousdecision of European Court of Human Rights � Human Rights Act 1998 (c 42),Sch 1, Pt I, arts 8, 10

The claimant, a renowned musician who had sold millions of recordingsworldwide, carefully guarded her personal privacy. The defendant, who had been aclose friend of the claimant, wrote a book on the claimant containing personal andprivate information about her. The claimant issued proceedings in the High Court,founded on alleged breaches of privacy or of obligations of con�dence, for aninjunction to prevent the further publication of certain material which, shecontended, she was entitled to keep private. The judge upheld the claim and grantedan injunction preventing further publication of a signi�cant part of the workcomplained of on the ground that it constituted private information under article 8of the European Convention for the Protection of Human Rights and FundamentalFreedoms, as scheduled to the Human Rights Act 19981, and that the claimant�s rightunder article 8 outweighed the defendant�s right to freedom of expression underarticle 10 of the Convention.

On the defendant�s appeal�Held, dismissing the appeal, that in order to identify the rules of the English law

of breach of con�dence it was necessary to have regard to the jurisprudence of articles8 and 10 of the Convention since the articles were not merely of persuasive or parallele›ect but now constituted the very content of the domestic tort; that, therefore, thecourt was obliged to apply a previous decision of the European Court of HumanRights, concerning the balance between articles 8 and 10, in preference to a decisionof the domestic Court of Appeal which addressed the balancing exercise in thetraditional domestic terms of breach of con�dence; that the general rule thatarticle 8was intended to ensure the development, without outside interference, of thepersonality of each individual in his relations with others, even in a public context,was not limited to cases concerning media intrusion; that where the complaint was ofthe wrongful publication of private information, the court initially had to decidewhether the information was private in the sense that it was in principle protected byarticle 8, and, if the answer was ��no��, that would be the end of the matter; that if,however, the answer was ��yes��, the court had to ask the question whether the interestof the owner of the information had to yield to the right of freedom of expressionconferred on the publisher by article 10; and that, accordingly, the judge hadmade noerror of principle in applying such an approach to the facts and his assessment of the

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H 1 Human Rights Act 1998, Sch 1, Pt I, art 8(1): ��Everyone has the right to respect for hisprivate and family life . . .��

Art 10: ��(1) Everyone has the right to freedom of expression . . . (2) The exercise of [thisfreedom], since it carries with it duties and responsibilities, may be subject to such . . .restrictions or penalties as are prescribed by law and are necessary in a democratic society . . .for the protection of the reputation or rights of others [or] for preventing the disclosure ofinformation received in con�dence . . .��

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McKennitt v Ash (CA)McKennitt v Ash (CA)[2008] QB[2008] QB

QB 2008�4

balance between articles 8 and 10 would not be interfered with (post, paras 11, 26,36—42, 44—45, 58—59, 62—64, 81—83).

VonHannover v Germany (2004) 40 EHRR 1 applied.Woodward v Hutchins [1977] 1 WLR 760, CA and A v B plc [2003] QB 195,

CA distinguished.Decision of Eady J [2005] EWHC 3003 (QB); [2006] EMLR 178 a–rmed.

The following cases are referred to in the judgments:A v B plc [2002] EWCA Civ 337; [2003] QB 195; [2002] 3 WLR 542; [2002] 2 All

ER 545, CAAttorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109; [1988]

3WLR 776; [1988] 3All ER 545, HL(E)Bonnard v Perryman [1891] 2Ch 269, CACampbell v MGN Ltd [2002] EWCACiv 1373; [2003] QB 633; [2003] 2 WLR 80;

[2003] 1 All ER 224, CA; [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 WLR1232; [2004] 2All ER 995, HL(E)

Douglas v Hello! Ltd (No 3) [2005] EWCACiv 595; [2006] QB 125; [2005] 3 WLR881; [2005] 4All ER 128, CA

Hellewell v Chief Constable of Derbyshire [1995] 1WLR 804; [1995] 4All ER 473Interbrew SAv Financial Times Ltd [2002] EWCACiv 274; [2002] EMLR 446, CAJameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007]

1AC 359; [2006] 3WLR 642; [2007] Bus LR 291; [2006] 4All ER 1279, HL(E)Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2AC 465; [2006]

2WLR 570; [2006] 4All ER 128, HL(E)M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91;

[2006] 2WLR 637; [2006] 4All ER 929, HL(E)Marckx v Belgium (1979) 2 EHRR 330Plattform ��ffrzte f�r das Leben�� v Austria (1988) 13 EHRR 204S (A Child) (Identi�cation: Restrictions on Publication), In re [2004] UKHL 47;

[2005] 1AC 593; [2004] 3WLR 1129; [2004] 4All ER 683, HL(E)Sciacca v Italy (2005) 43 EHRR 400VonHannover v Germany (2004) 40 EHRR 1Wainwright v HomeO–ce [2003] UKHL 53; [2004] 2 AC 406; [2003] 3WLR 1137;

[2003] 4All ER 969, HL(E)Woodward vHutchins [1977] 1WLR 760; [1977] 2All ER 751, CAX and Y v TheNetherlands (1985) 8 EHRR 235

The following additional cases were cited in argument:Galloway v Telegraph Group Ltd [2004] EWHC 2786 (QB); The Times, 13 January

2005Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462; [2005] QB 972;

[2005] 3WLR 281; [2005] 1All ER 30, CAInitial Services Ltd v Putterill [1968] 1 QB 396; [1967] 3 WLR 1032; [1967] 3 All

ER 145, CAKhashoggi v IPCMagazines Ltd [1986] 1WLR 1412; [1986] 3All ER 577, CALion Laboratories Ltd v Evans [1985] QB 526; [1984] 3 WLR 539; [1984] 2 All

ER 417, CATheakston vMGNLtd [2002] EWHC 137 (QB); [2002] EMLR 398

APPEAL from Eady JThe claimants, Loreena McKennitt, Hampstead Productions Ltd and

Quinlan Road Ltd, brought a claim in theHighCourt seeking injunctive reliefagainst the defendants, Niema Ash and Purple Inc Press Ltd. By a judgmentdated 21 December 2005 Eady J granted injunctive relief preventing furtherpublication of awork describing aspects of the �rst claimant�s life.

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McKennitt v Ash (CA)McKennitt v Ash (CA) [2008] QB[2008] QB

The �rst defendant appealed, with the permission of the Court ofAppeal, on the following grounds, inter alia. (1) The judge had made anerror of law in deciding that the enjoined material was con�dential and fellwithin article 8 of the European Convention for the Protection of HumanRights and Fundamental Freedoms since: (i) the experiences described wereshared by both the �rst defendant and the �rst claimant, so that the �rstdefendant had property in the information which should not besubordinated to that of the �rst claimant; and (ii) the judge had wronglytaken account of Von Hannover v Germany (2004) 40 EHRR 1, a casedecided by the European Court of Human Rights, when considering thequestion of whether article 8 was engaged. (2) The judge had made anerror of law in deciding that the �rst defendant�s article 10 Conventionright to freedom of expression was outweighed by the �rst claimant�sarticle 8 right to privacy since: (i) the judge had failed to respect the �rstdefendant�s right to sell her own story; (ii) the judge had failed to givesu–cient weight to the extent to which the enjoined material was already inthe public domain; and (iii) the judge had undervalued the public interest inthe disclosures contained in the enjoined material, in the course of which hehad failed to follow the guidance in A v B plc [2003] QB 195. (3) The judgehad made an error in law in deciding that the �rst defendant was notjusti�ed in revealing the private details about the �rst claimant on theground that she had behaved in a dishonest and insincere manner whichwas inconsistent with her public position on proper behaviour and respectfor others. (4) Since the judge had found that certain parts of the bookwere untrue, the �rst claimant had chosen the wrong cause of action in thatshe should not have brought a claim for breach of con�dence, but shouldhave brought the claim in defamation instead.

A representative range of media organisations, including TimesNewspapers Ltd, the Press Association and the British Broadcasting Corpn,applied to intervene, but the Court of Appeal, with the consent of thoseparties, stated that it would take note, and asked the parties to take note, ofthe detailed submissions in the application to intervene, and the authoritiesset out therein.

On 21 November 2006, the Court of Appeal imposed reportingrestrictions as follows:

��It is ordered: (1) that pursuant to CPR r 39.2(3)(a) this hearing be inprivate whenever reference is to be made to any part of the informationcontained in Appendix A to the order of Eady J dated 21December 2005;(2) that pursuant to section 11 of the Contempt of Court Act 1981 therebe no reporting of any matter withheld from the public in theseproceedings; (3) that no person may obtain a copy of any documentdisclosed by the parties or of any document before this court or on thecourt records (including statements of case, witness statements andtranscripts of evidence) without the consent of the claimants, or, failingthat, the leave of the court, and this shall be until further order of thecourt; (4) that nothing in this order shall prevent a fair and accuratereport of the judgment of Eady J dated 21 December 2005 or of thesubmissions of the advocates for the parties in open court.��

The facts are stated in the judgment of Buxton LJ.

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David Price, solicitor, and Korieh Duodu for the �rst defendant.Celebrities should not be readily enabled to obtain injunctions merely torestrain un�attering truths: see Khashoggi v IPC Magazines Ltd [1986]1WLR 1412 and Lion Laboratories Ltd v Evans [1985] QB 526.

The judge erred in construing and applying article 8 of the Convention forthe Protection of Human Rights and Fundamental Freedoms to the passagescomplained of in the �rst defendant�s book. If proper regard is given toCampbell v MGN Ltd [2004] 2 AC 457 and Douglas v Hello! Ltd (No 3)[2006] QB 125 it is clear that the passages are not con�dential to the �rstclaimant.

The pre-existing relationship between the �rst claimant and the �rstdefendant does not create an expectation of con�dence such as to inhibit the�rst defendant from publication; and the matters identi�ed as private arenot merely the �rst claimant�s experience but also the �rst defendant�sexperience. [Reference was made toWainwright v HomeO–ce [2004] 2AC406 and Woodward v Hutchins [1977] 1 WLR 760.] When considering thequestion of whether article 8 is engaged A v B plc [2003] QB 195 should befollowed rather thanVonHannover v Germany (2004) 40 EHRR 1.

The judge did not pay su–cient respect to, or apply, section 12(4) of theHuman Rights Act 1998, requiring that ��particular regard�� be paid to thearticle 10 right. He further failed to respect the right of the �rst defendant totell her own story: see Av B plc [2003] QB 195. In considering the extent towhich the public is entitled to receive information, the answer is objectiveand cannot depend on the status of the defendant: seeWoodward v Hutchins[1977] 1 WLR 760; Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412;Theakston v MGN Ltd [2002] EMLR 398 and Campbell v MGN Ltd[2004] 2 AC 457. Information that is already known cannot claim theprotection of private life.

There is a legitimate public interest in the a›airs of the �rst claimantbecause she is a public �gure; and where a public �gure has misbehaved thepublic has a right to have the record put straight: see Campbell v MGN Ltd[2004] 2AC 457.

The width of the rights given to the media by A v B plc [2003] QB 195cannot be reconciled with Von Hannover v Germany 40 EHRR 1; andEnglish courts should not apply Von Hannover�s case to the facts of thepresent case because they are bound by A v B plc: see Kay v LambethLondon Borough Council [2006] 2 AC 465, paras 43—45. The rules as toprecedent in English domestic law apply to interpretations of Conventionjurisprudence, and where the Court of Appeal has ruled on the meaning orreach of a particular article of the Convention a later division of the Court ofAppeal cannot depart from that ruling simply on the basis that it isinconsistent with a later or earlier decision of the European Court of HumanRights.

In the light of the judge�s �ndings that most, or all, of the book�sallegations about the disputes between the �rst claimant and the �rstdefendant are untrue, there can be no claim in breach of con�dence.Whatever the position in defamation, the �nding that what the �rstdefendant wrote is untrue constitutes a complete defence, even though the�rst defendant�s case at trial was that the whole of the book is true. Theprotection of article 8 is lost where it is demonstrated that the matter isuntrue.

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McKennitt v Ash (CA)McKennitt v Ash (CA) [2008] QB[2008] QB

Desmond Browne QC and David Sherborne for the �rst claimant. Topursue a libel claim and then to pursue a claim in breach of con�dence wouldcreate the very di–culties identi�ed inWoodward v Hutchins [1977] 1WLR760: see Bonnard v Perryman [1891] 2 Ch 269 and Greene v AssociatedNewspapers Ltd [2005] QB 972.

The judge correctly identi�ed the reach of article 8 and found the relevantpassages to be con�dential: see Campbell v MGN Ltd [2004] 2 AC 457 andDouglas v Hello! Ltd [2006] QB 125.

Von Hannover v Germany 40 EHRR 1 extends the reach of article 8 andshould be followed. [Reference was also made to Sciacca v Italy (2005)43 EHRR 400, paras 27, 29.]

There is no error of principle in the instant case so that the Court ofAppeal should not interfere with the decision: see Campbell v MGN Ltd[2004] 2 AC 457 andGalloway v Telegraph Group Ltd [2004] EWHC 2786(QB); The Times, 13 January 2005.

The judge was right to reject the �rst defendant�s case under article 10.He correctly based himself uponCampbell v MGNLtd [2004] 2AC 457 andIn re S (A Child) (Identi�cation: Restrictions on Publication) [2005] 1 AC593. He held that the con�dence was ��shared�� only in the sense that the�rst claimant had admitted the �rst defendant to her con�dence, whichcon�dence the �rst defendant knew should be respected. Accordingly, the�rst defendant has no story to tell that is her own as opposed to being the�rst claimant�s; and, even if she had, the right of the �rst defendant has, onthe facts, to yield to the right of the �rst claimant.

Information that is already known cannot claim the protection of privatelife, but it is not the case that once a person has revealed or discussed someaspect of his life he has a greatly reduced expectation of privacy in relation toany other information that falls within that aspect. If information isprotected by a right of privacy, it is for the individual concerned to decidehowmuch of it should be published.

As to whether there is a legitimate public interest in the a›airs of the �rstclaimant because she is a public �gure, the facts are important: see InitialServices Ltd v Putterill [1968] 1 QB 396; Lion Laboratories Ltd v Evans[1985] QB 526; Hellewell v Chief Constable of Derbyshire [1995] 1 WLR804 andCampbell vMGNLtd [2004] 2AC 457. It remains unclear whethereither detriment or embarrassment is required: see Attorney General vGuardianNewspapers Ltd (No 2) [1990] 1AC 109.

In Von Hannover�s case 40 EHRR 1 the European Court of HumanRights recognised the important role of the press in dealing with matters ofpublic interest; but a distinction was drawn between a watchdog role in thedemocratic process and the reporting of private information about peoplewho, although of interest to the public, were not public �gures.

Provided the matter complained of is by its nature such as to attract thelaw of breach of con�dence a defendant cannot deprive a claimant of hisarticle 8 protection simply by demonstrating that the matter is in fact untrue.

Price replied.

The second and third claimants and the second defendant did not appearand were not represented.

Cur adv vult

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14December. The following judgments were handed down.

BUXTONLJ

Background

1 I set out no more than is necessary to understand the issues in theappeal. Much of what follows is taken largely verbatim from the judgmentof Eady J [2006] EMLR 178, which was described by the constitution of thiscourt that granted permission to appeal as detailed and careful. The casebefore Eady J was heard in private. The claim seeks to prevent the furtherpublication of certain material, so this was a case where a public hearingwould have defeated the object of that hearing, one of the cases for privacythat is provided by CPR r 39.2(3)(a). The judge enjoined further publicationof a signi�cant part of the work complained of. He dealt with the problemof publicity in the course of litigation by (if I may respectfully say so, veryskilfully), delivering an open judgment that described the objectionablematerial in general terms, but appended a con�dential appendix in which theactual enjoined material was fully described.

2 Before us, an application was made to hear in private those parts ofthe appeal that required reference to the material in the appendix. Wegranted that application, for the same reason as the judge had sat in private.However, we were able without undermining the judge�s order to hear themajor part of the appeal, including all of the legal argument, in public. Thatwas achieved by the care exercised by Mr Price and by Mr Browne inpresenting their arguments, and we are grateful to them for their skill andco-operation in that respect.

3 The �rst claimant is Loreena McKennitt, a Canadian citizen, who hasfor many years run a business around her composition and performance offolk and folk-related music. She has sold millions of recordings and hasfrom time to time toured various parts of the world playing live concerts.The second and third claimants (who play no active role in the proceedings)are Hampstead Productions Ltd and Quinlan Road Ltd. These arecompanies incorporated under the laws of Ontario which are owned andcontrolled by the �rst claimant. The copyright in the musical and literaryworks comprised in her songs, as well as that in the sound recordings of herperformances, is owned by various corporate entities.

4 The proceedings are based upon alleged breaches of privacy or ofobligations of con�dence, said to arise either by implication of law or, insome instances, from express contractual provisions. The case concerns thepublication in 2005 of a book Travels with LoreenaMcKennitt: My Life as aFriend (��the book��). This was written by the �rst defendant, Niema Ash,who was formerly a friend of the �rst claimant. She and her long-termpartner, Tim Fowkes, had often socialised with the �rst claimant andentertained her while she was in England. Moreover, they had sometimesworked closely with her in connection with her business here and abroadand accompanied her on a contractual basis on one foreign tour inparticular. That tour followed the release of an album in 1997 called ��TheBook of Secrets��. It was to promote this album that a European andAmerican tour took place in 1998, in connection with which the �rstdefendant agreed to carry out the services of a merchandise supervisor andshe was retained for that purpose by the second claimant company.

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McKennitt v Ash (CA)McKennitt v Ash (CA) [2008] QB[2008] QBBuxton LJBuxton LJ

5 The second defendant in these proceedings (which equally plays noactive part in them) is a company called Purple Inc Press Ltd, which wasincorporated in this jurisdiction in April 2005 for the purpose of publishingthe book in question. The sole director is the �rst defendant.

6 The nub of the �rst claimant�s claim is that a substantial part of thebook reveals personal and private detail about her which she is entitled tokeep private. That claim is brought against the background that the �rstclaimant is unusual amongst worldwide stars in the entertainment business,in that she very carefully guards her personal privacy. The judge rightly sawthat to be a matter of great importance, such as to require him to make�ndings about it at the very start of his judgment. He said, at paras 6—8:

��6. Ms McKennitt has vehemently asserted in these proceedings thatshe has always sought to keep matters connected with her personal andbusiness life private and con�dential. It was con�rmed in evidence beforeme that, whenever a press conference or interview takes place, it isimpressed upon those concerned that inquiries about her personal life arevery much o› limits. Indeed, it seems to have been accepted by Ms Ash(at least on p 313 of her book) that she protected her reputation and herprivacy �with the iron safeguard of a chastity belt�.

��7. In so far as there have been exceptions to her primary rule ofprotecting her privacy, Ms McKennitt has emphasised that she hasoccasionally released some information which �she felt comfortable with�,and in respect of which she was able to control the boundaries herself.This has apparently occurred mainly in connection with a charity whichshe founded and promoted in connection with water safety and theprevention of boating accidents. This followed a tragedy in 1998 whenher �anc� (together with his brother and a friend) died in a drowningaccident in Canada. She has accepted that, for these purposes, it issometimes necessary to provide personal detail in order to bring home topeople the risks inherent in sailing and the need to take precautions. Thepersonal impact upon her highlights the dangers, she believes, in a waythat could not be achieved by general and impersonal safety warnings.When, in this connection, Ms McKennitt has spoken about the death ofher �anc�, she has done so on a controlled and limited basis with which,again, she �feels comfortable�.

��8. Ms McKennitt, therefore, places at the centre of her present claimthe proposition that her private life and indeed her business a›airs areentitled to protection on the basis of a duty of con�dence, and are not inthe public domain by reason either of her fame in itself or of the limitedrevelations to which I have referred.��

The course of the appeal

7 There is an extant appeal to this court in relation to the judge�s costsorder, which this judgment does not address. Otherwise, the judge refusedpermission to appeal against his substantive order, and that refusal wasrepeated by a single Lord Justice on paper. However, on an ex parteapplication by Mr Price (who had by then taken over the matter, the �rstdefendant having represented herself at, though not up to, the trial)permission to appeal was granted, the Lord Justice who delivered thejudgment on that occasion observing that ��this is an important and

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McKennitt v Ash (CA)McKennitt v Ash (CA)[2008] QB[2008] QBBuxton LJBuxton LJ

developing area of law where an appeal on these facts may help to clarifyand de�ne some of the relevant principles even if it does not alter theoutcome��. Possibly emboldened by that indication, the argument in thisappeal has ranged widely, and certainly beyond the narrow limits of the factsof the case. While necessarily addressing some considerable part of thatargument, I will need later in the judgment to bring us down to ground to theactual issues in this case. And also, alarmed by what appeared to be on foot,a representative range of media organisations, including Times NewspapersLtd, the Press Association and the BBC, applied to intervene. We suggestedthat that matter could be managed not by a formal intervention but by ourtaking note, and asking the parties to take note, of the detailed submissionsin the application to intervene, and the authorities there set out. The mediaparties (as I will refer to them) were good enough to agree to that course. Wealso received a letter from the Publishers Association, which we indicated tothe parties that we had read. We took those steps without prejudice to thelaw or practice on intervention by commercial as opposed to public or publicinterest parties, which law and practice remains in a state of someuncertainty.

A taxonomy of the law of privacy and con�dence8 It will be necessary to refer to the underlying law at various stages of

the argument, and it would be tedious to repeat such reference more than isnecessary. Since the content of that law is in some respects a matter ofcontroversy, I set out what I understand the present state of that law to be.I start with some straightforward matters, before going on to issues of morecontroversy. (i) There is no English domestic law tort of invasion of privacy.Previous suggestions in a contrary sense were dismissed by Lord Ho›mann,whose speech was agreed with in full by Lord Hope of Craighead and LordHutton, in Wainwright v Home O–ce [2004] 2 AC 406, paras 28—35.(ii) Accordingly, in developing a right to protect private information,including the implementation in the English courts of articles 8 and 10 of theEuropean Convention for the Protection of Human Rights and FundamentalFreedoms, as scheduled to the Human Rights Act 1998, the English courtshave to proceed through the tort of breach of con�dence, into which thejurisprudence of articles 8 and 10 has to be ��shoehorned��:Douglas v Hello!Ltd (No 3) [2006] QB 125, para 53. (iii) That a feeling of discomfort arisesfrom the action for breach of con�dence being employed where there wasno pre-existing relationship of con�dence between the parties, but the��con�dence�� arose from the defendant having acquired by unlawful orsurreptitious means information that he should have known he was not freeto use: as was the case inDouglas v Hello! Ltd (No 3), and also in Campbellv MGN Ltd [2004] 2 AC 457. Two further points should however be noted.(iv) At least the verbal di–culty referred to in (iii) above has been avoided bythe rechristening of the tort as misuse of private information: per LordNicholls of Birkenhead inCampbell�s case, para 14. (v) Of great importancein the present case, as will be explained further below, the complaint here isof what might be called old-fashioned breach of con�dence by way ofconduct inconsistent with a pre-existing relationship, rather than simply ofthe purloining of private information. Something more now needs to be saidabout the way in which the rules laid down by articles 8 and 10 enter Englishdomestic law.

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9 Most of the articles of the Convention impose negative obligations onthe state and on public bodies. That accordingly a›ects the content of thearticles and the obligations that they create, which are obligations owed onlyby public bodies. When those articles were introduced into English law bythe medium of the Human Rights Act 1998, and recited in Schedule 1 to thatAct, that content did not change and could not have changed. That is why,whatever the structure adopted by English law for giving e›ect to theConvention, most of the articles, since their content is restricted to creatingobligations on public bodies, do not and cannot create obligations owed byprivate parties in private law. Article 8 has, however, always been seen asdi›erent; as, in this regard, has article 11, freedom of assembly, on which thelatter see Plattform ��ffrzte f�r das Leben�� v Austria (1988) 13 EHRR 204,para 32. Not in its terms, but as extended by jurisprudence, article 8imposes not merely negative but also positive obligations on the state: torespect, and therefore to promote, the interests of private and family life.That means that a citizen can complain against the state about breaches ofhis private and family life committed by other individuals. That has beenConvention law at least sinceMarckx v Belgium (1979) 2 EHRR 330, and aparticularly strong statement of the obligation is to be found in X and Y vThe Netherlands (1985) 8 EHRR 235.

10 More di–culty has been experienced in explaining how that stateobligation is articulated and enforced in actions between private individuals.However, judges of the highest authority have concluded that that followsfrom section 6(1) and (3) of the Human Rights Act 1998, placing on thecourts the obligations appropriate to a public authority: see per BaronessHale of Richmond in Campbell�s case [2004] 2 AC 457, para 132; per LordPhillips of Worth Matravers MR inDouglas�s case [2006] QB 125, para 53;and in particular per LordWoolf CJ inAv B plc [2003] QB 195, para 4:

��under section 6 of the 1998 Act, the court, as a public authority, isrequired not to act �in a way which is incompatible with a Conventionright�. The court is able to achieve this by absorbing the rights whicharticles 8 and 10 protect into the long-established action for breach ofcon�dence. This involves giving a new strength and breadth to the actionso that it accommodates the requirements of those articles.��

11 The e›ect of this guidance is, therefore, that in order to �nd the rulesof the English law of breach of con�dence we now have to look in thejurisprudence of articles 8 and 10. Those articles are now not merely ofpersuasive or parallel e›ect but, as Lord Woolf CJ says, are the very contentof the domestic tort that the English court has to enforce. Accordingly, in acase such as the present, where the complaint is of the wrongful publicationof private information, the court has to decide two things. First, is theinformation private in the sense that it is in principle protected by article 8?If ��no��, that is the end of the case. If ��yes��, the second question arises: in allthe circumstances, must the interest of the owner of the private informationyield to the right of freedom of expression conferred on the publisher byarticle 10? The latter inquiry is commonly referred to as the balancingexercise, and I will use that convenient expression. I take the two questionsin turn. Some aspects of the jurisprudence overlap between the twoquestions, but it remains necessary to keep the underlying issues separate.

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I have well in mind, in addressing article 8, the warning given by LordNicholls in his speech inCampbell�s case [2004] 2AC 457, para 21:

��in deciding what was the ambit of an individual�s �private life� inparticular circumstances courts need to be on guard against using as atouchstone a test which brings into account considerations which shouldmore properly be considered at the later stage of proportionality.Essentially the touchstone of private life is whether in respect of thedisclosed facts the person in question had a reasonable expectation ofprivacy.��

Article 8: was the information private?Background12 The judge listed a large number of parts of the book that were said by

the �rst claimant to consist of private information. He refused protectionfor many of them because he regarded their content as ��anodyne��, impreciseor already known to the public. In an authority shown to us after argumenthad closed, M v Secretary of State for Work and Pensions [2006] 2 AC 91,para 83, Lord Walker of Gestingthorpe pointed out that interference withprivate life had to be of some seriousness before article 8 was engaged. Thespirit of that guidance was indeed respected by the judge in the analysis justdescribed. It will be necessary to describe the remaining matters, in respectof which the judge did grant injunctive relief, with some particularity, butthe general nature of the information sought to be restrained was indicatedby the judge at para 11:

��(i) Ms McKennitt�s personal and sexual relationships. (ii) Herpersonal feelings and, in particular, in relation to her deceased �anc�and the circumstances of his death. (iii) Matters relating to her healthand diet. (iv) Matters relating to her emotional vulnerability. (v) Thedetail of an unhappy dispute between Ms McKennitt, on the one hand,and Ms Ash and Mr Fowkes on the other, concerning moneys advancedto them by Ms McKennitt to assist in the purchase of a property in1997 and the subsequent litigation in the Chancery Division (which wassettled on the basis of a Tomlin order without ever coming to a publichearing).��

13 I should say straight away that the last matter, which I shall refer toas the property dispute, raises issues di›erent from the other matterscomplained of, and I will deal with it separately towards the end of thejudgment. The other parts of the book in respect of which relief was grantedcan be identi�ed as follows, for convenience repeating the numeration in theclaim, which was also used by the judge. (i) Item 4: what the judge describes,at para 17, as ��a rather intimate conversation between Ms McKennitt andMs Ash (which would otherwise certainly not have been in the publicdomain)��. (ii) Item 5: what the judge describes, at para 18, as ��extensivereferences in the book to Ms McKennitt�s relationship with her �anc�, whodied in the boating accident in 1998��. (iii) Item 9: a detailed account ofevents at the �rst claimant�s cottage in Ireland, and of the physicalarrangements there, including a period when the �rst defendant andMr Fowkes did building work at the cottage. (iv) Item 13: what the judgedescribed, at para 142, as ��intimate revelations�� about the state of the �rst

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claimant�s health after the bereavement described in (ii) above. (v) Item 14:revelations about the �rst claimant�s fragile condition during a visit toTuscany after the bereavement. (vi) Item 15: discussion of terms andconditions of a contract entered into by the �rst claimant with a recordingcompany. (vii) Item 34: an incident in a hotel bedroom shared by the �rstclaimant and the �rst defendant; and a report of a telephone conversation inwhich the �rst claimant revealed the state of her health.

14 The nub of Mr Price�s argument in this part of the case, based bothon the account given in the judgment and repeated above, and also on themore detailed examination of the book that we undertook in the private partof the hearing, was that the judge�s �nding that all of the above was privateinformation went far beyond anything previously decided. That, it wassuggested, could be seen by comparison with the facts of cases likeCampbell�s case andDouglas�s case. I am not at all sure that that argumentis correct, even on its own terms. Campbell�s case concluded that although itwas not, on the facts, private information that Ms Campbell su›ered fromdrug addiction it was private information that she was seeking treatment forthat addiction. Douglas�s case concluded that unauthorised photographs ofa wedding were private even though the couple were perfectly content,indeed contractually bound, to allow authorised photographs of the sameevent to be published. I would be hard pressed to say that the matters listedby Eady J were less obviously intrusive into the �rst claimant�s life. But thereis a much more formidable reason why this assault on Eady J�s conclusionsmust fail. That is to be found in the nature of the relationship between the�rst claimant and the �rst defendant, to which I now turn.

A pre-existing relationship of con�dence15 Recent leading cases in this area, such as Campbell�s case,Douglas�s

case, and the most recent case in the European Court of Human Rights, VonHannover v Germany (2004) 40 EHRR 1, have wrestled with the problemof identifying the basis for claiming privacy or con�dence in respect ofunauthorised or purloined information: see para 8(iii) above. There, theprimary focus has to be on the nature of the information, because it is therecipient�s perception of its con�dential nature that imposes the obligationon him: see for instance per Lord Go› of Chieveley in Attorney General vGuardian Newspapers Ltd (No 2) (��Spycatcher��) [1990] 1 AC 109, 281a.But, as Lord Go› immediately goes on to say, in the vast majority of casesthe duty of con�dence will arise from a transaction or relationship betweenthe parties. And that is our case, which accordingly reverts to a moreelemental inquiry into breach of con�dence in the traditional understandingof that expression. That does not of course exempt the court fromconsidering whether the material obtained during such a relationship isindeed con�dential; but to inquire into that latter question without payingany regard to the nature of the pre-existing relationship between the parties,as the argument for the �rst defendant in this court largely did, is unlikely toproduce anything but a distorted outcome.

16 The judge made substantial �ndings of fact as to the nature of therelationship between the �rst claimant and the �rst defendant, and theexpectation of con�dence that that created. None of this was challenged onappeal, nor could it have been. Because of the importance of this aspect ofthe case I set out part of the judge�s account, at paras 71—74:

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��71. It is also clear from a number of quite explicit passages in thebook that Ms Ash realised that substantial parts of it, at least, would fallwithin the scope of a reasonable expectation of privacy or a duty ofcon�dence. Mr Browne drew a number to my attention. At the beginningof the book, for example, Ms Ash actually describes an �intimaterelationship of almost 20 years with an un�edged small town girl�. Shealso announces to readers that she will be �releasing personality frailtiespreviously concealed in the protective cocoon of anonymity�. It isobvious that she was only able to do so by reason of the �intimaterelationship�.

��72. On p 18, Ms Ash records that Ms McKennitt �con�ded to me�information about her London friends�which she then proceeds toreveal. Likewise, on p 84, she sets out another piece of information whichshe expressly states was �con�ded to me�. The tit-bit in question may notbe of particular signi�cance, but it does illustrate that Ms Ash was wellaware that some material was imparted to her in the context of a closefriendship and that she is, nevertheless, prepared to reveal it in order toattract readers. The point is again emphasised on p 93, where she states,�She cared for us and we cared for her. We were her closest friends andshe knew she could count on our unquali�ed loyalty.� That is, of course, afundamental aspect ofMsMcKennitt�s complaint.

��73. Similarly, on p 82, she refers to �my friend Loreena who hadrevealed her innermost self to me; who had trusted me with hervulnerability�. Two pages later, she describes herself and Mr Fowkes as�Loreena�s close friends, [who] occupied a privileged, unique position�.

��74. The degree of intimacy between the two women is againemphasised on p 118: �We talked non-stop. No topic was o›-limit.Loreena told me about boyfriend problems, musician problems, o–ceproblems, plans for improving her Stratford farmhouse, her o–ce, plansfor her next album . . .� On the next page she refers to the �real essence ofour friendship�: �Our closeness was tangible. Loreena would always bethere for me. I would always be there for her. Our trust was implicit. I nolonger required an exchange of blood to cement friendship. I felt ourbond to be so special it was like something secret. Nothing coulddiminish it.� ��

17 The judge added to his �ndings about the nature of the relationshipand the �rst defendant�s perception of it, at para 90:

��I am quite satis�ed . . . thatMs Ash was only too aware, at the time ofand prior to publication, that much of the content of the book wouldcause concern and distress to Ms McKennitt because of its intrusivenature. Accordingly, not only a reasonable person standing in her shoes,butMs Ash herself would be conscious that she was thereby infringing the�trust� and �loyalty� to which she referred in the book. I shall consider thespeci�c complaints in due course, although I need hardly add that it is noteverything in the book which infringes privacy (and Ms McKennitt doesnot suggest otherwise).��

18 The judge accordingly approached, and correctly approached, hisconsideration of the passages complained of against the background of apre-existing relationship of con�dence, known to be such by the �rst

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defendant, while at the same time not assuming that that covered everythingthat happened between the two women with the cloak of con�dence. I willbrie�y review his �ndings on the items listed in para 13 above, all of which�ndings are unassailable.

19 Item 4 concerned what the judge, at para 132, described as ��privateand intimate observations��: the �rst defendant must have known that shewas not at liberty to broadcast them to the world.

20 Item 5 deals with the �rst claimant�s relationship with her �anc� andthe outcome of his death in 1998. The judge, at para 133, described thepassages in the book as ��remarkably intrusive and insensitive��. Having hadthe bene�t, if that is the right word, of reading the whole of the book�streatment of this subject, I would think that the judge�s characterisation was,if anything, restrained.

21 Item 9was addressed by the judge at paras 135—136:

��135. Item 9 concerns Ms McKennitt�s Irish cottage. It is not her onlyhouse, but it is nevertheless a home. That is one of the matters expresslyaddressed in article 8(1) of the Convention as entitled to �respect�.Correspondingly, there would be an obligation of con�dence. Evenrelatively trivial details would fall within this protection simply becauseof the traditional sanctity accorded to hearth and home. To describe aperson�s home, the d�cor, the layout, the state of cleanliness, or how theoccupiers behave inside it, is generally regarded as unacceptable. Toconvey such details, without permission, to the general public is almost asobjectionable as spying into the home with a long distance lens andpublishing the resulting photographs.

��136. True it is that over �ve or six years Mr Fowkes was engaged,from time to time, in renovation works at the cottage. Ms Ash, too, did alot of hard work to make it habitable after Ms McKennitt acquired it in1992. Some of the work was remunerated and some was not. That seemsto me to make no signi�cant di›erence. Whether one is allowed into aperson�s home professionally, to quote for or to carry out work, or one iswelcomed socially, it would clearly be understood that the details are notto be published to the world at large.��

22 Criticism was made of the introduction to this passage, in thatarticle 8 cases have tended to be concerned with the security or stability ofresidence, rather than with privacy within the home. But the judge clearlyspoke only by analogy, pointing out that it should have been and wasobvious that events in a person�s home cannot be lightly intruded upon; andin the event, as he said, at para 138, ��it is intrusive and distressing forMs McKennitt�s household minutiae to be exposed to curious eyes��. AndI would also respectfully agree with his comparison with long distancephotography, an exercise generally considered to raise privacy issues. Ifanything, on the judge�s �ndings as set out in para 17, above, the �rstdefendant knew a good deal better than might a casual photographer thatpublication of the fruits of her inspection of the cottage and of whathappened there was unacceptable.

23 Item 13 concerns revelations about the state of the �rst claimant�shealth, their intrusive nature being made the worse by her fragility havingbeen associated with the bereavement. A person�s health is in any event aprivate matter, as Campbell v MGN Ltd [2004] 2 AC 457 demonstrated. It

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is doubly private when information about it is imparted in the context of arelationship of con�dence. The judge was entirely right to say, at para 142,that there is a reasonable expectation of privacy in relation to such matters.The same is true of his holding, at para 143, in relation to item 14.

24 Item 15 relates to the �rst claimant�s contractual dealings, dealingsthat we were told, and the judge assumed, were not public knowledge. If thecontractual documents had fallen o› the back of a lorry and been picked upby a third party there might be some question as to whether they were ofsuch a nature that he was bound to hold them in con�dence. The documentsmight not come within the category of self-evident privacy that was in themind of Laws J in his famous example in Hellewell v Chief Constable ofDerbyshire [1995] 1 WLR 804, 807. But there is no such issue in the caseof a person who �nds out details of contractual terms because she is in arelationship of con�dence with the contracting party. As the judge said, atpara 144:

��There is a general discussion on p 26 [of the book] of the contractualterms and of concessions made. Even though it is general, it seems to methat MsMcKennitt is entitled to a reasonable expectation of privacy as toher contractual terms. They are certainly not forMs Ash to reveal.��

25 Item 34 was seen by the judge as more of a borderline case, but hethought that both occasions were ones on which privacy was to be expectedby the �rst claimant of the �rst defendant. He was clearly entitled so to hold.

26 I would therefore respectfully agree with all of the judge�sconclusions as to the reach of article 8. It may also be added, as anindication that he did not approach the case with any preconception, norany unreasonable hostility to the �rst defendant, that there were manystories about the relationship between the two women reproduced in thebook that the judge held not to have been breaches of con�dence. I wouldonly comment that in some of those cases I myself might have taken adi›erent view.

27 I must however now deal with a number of arguments presentedby the �rst defendant that claim that the judge failed to apply generalconsiderations that indicated that the items that he identi�ed were notcon�dential to the �rst claimant. The principal of these are the concept of��shared experience��; and the e›ect and authority of the decision of this courtin Woodward v Hutchins [1977] 1 WLR 760. I shall also need to saysomething about the recent decision of the European Court of HumanRights in Von Hannover v Germany 40 EHRR 1; and the impact on thisappeal of the claim in contract.

Shared experience

28 The �rst defendant argued that all of the matters set out above werenot merely the �rst claimant�s experience, but her own experience as well.That gave her a property in the information that should not be subordinated,or at least should not be readily subordinated, to that of the �rst claimant.This argument is of relevance to the �rst defendant�s claim under article 10,that she is entitled to tell her own story that includes her various experienceswith the �rst claimant, but as I understood it the contention is also relied onto say that the information was not con�dential in the �rst place.

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29 Some support was sought from passages in the judgment of thiscourt in A v B plc [2003] QB 195. We shall have to return to that case inmore detail when addressing article 10. It is su–cient here to say that itconcerned a married professional footballer (A) who sought to preventpublication by a newspaper (B) of his casual sexual relations with twowomen (C and D). C and D had sold their story to B. In the course of awide-ranging review of how a court should handle such a claim, this courtsaid that the right of protection of one party to a bilateral relationship mightbe a›ected by the attitude of the other party, and continued, at para 43(iii):

��although we would not go so far as to say there can be nocon�dentiality where one party to a relationship does not wantcon�dentiality, the fact that C and D chose to disclose their relationshipsto B does a›ect A�s right to protection of the information. For theposition to be otherwise would not acknowledge C and D�s own right tofreedom of expression.��

By the same token, it was suggested, the �rst defendant�s decision that hershared relationship with the �rst claimant should not be treated ascon�dential undermined the �rst claimant�s contention that it wascon�dential.

30 On the facts of our case, as found by the judge, that argument waswholly misconceived. First, the relationship between the �rst claimant andthe �rst defendant, testi�ed to in many places, and not least in the judge�scitations from the book set out in para 17 above, was miles away from therelationship between A and C and D. In the preceding paragraphI deliberately and not merely conventionally described the latter as arelationship of casual sex. A could not have thought, and did not say, thatwhen he picked the women up they realised that they were entering into arelationship of con�dence with him. Small wonder that Lord Woolf CJ saidAv B plc [2003] QB 195, para 45:

��Relationships of the sort which A had with C and D are not thecategories of relationships which the court should be astute to protectwhen the other parties to the relationships do not want them to remaincon�dential.��

Lord Woolf CJ would have been unlikely to say the same about therelationship between the �rst claimant and the �rst defendant.

31 Second, the judge made a series of factual �ndings about therelationship that completely destroy this argument. While the �rstdefendant had been involved in some of the matters revealed, and (which israther di›erent) a spectator of many others, the book, which is what thiscase is concerned with, is not in any real sense about her at all. She gives ventto many complaints about the �rst claimant; but the interest of those is thatthey are complaints about the �rst claimant, and not at all that thecomplaints are made by the �rst defendant. The judge made that clear intwo passages, in paras 68 and 89 of the judgment:

��68 . . . It would appear that the fundamental purpose of the book,which Ms Ash has described on its cover as �a must for every LoreenaMcKennitt fan�, was to provide information to her admirers which wouldnot otherwise be available. Much of the content of the book would be of

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no interest to anyone, I imagine, but for the fact that MsMcKennitt is thecentral character.��

��89. As I have already suggested, whatever Ms Ash�s true appreciationof the situation may be, from her perspective, it is di–cult for an outsiderto understand how the book would be of any interest to the general readerif it were not for the fact that Ms Ash is giving an account of her intimatedealings with a person who is known to many millions of people,throughout the world, interested in folk music and her music inparticular. Returning to the Boswell/Johnson analogy, one maycharacterise the exercise to that extent as largely parasitic. It is the centralrole of Ms McKennitt, and the revelations about her, which provide themain reason for people to acquire the book. It is, I have no doubt, whyher name appears in the title.��

32 Those conclusions, which were neither challenged nor could havebeen, con�rm that the matters related in the book were speci�callyexperiences of and the property of the �rst claimant. The �rst defendantcannot undermine their con�dential nature by the paradox of calling in aidthe con�dential relationship that gave her access to the information in the�rst place.

Woodward vHutchins

33 This case dates back to an era when the Convention had not invadedthe consciousness of English lawyers. I bear well in mind the warning ofLord Woolf CJ in A v B plc [2003] QB 195, para 9 that ��authorities whichrelate to the action for breach of con�dence prior to the coming into forceof the 1998 Act . . . are largely of historic interest only��. Nevertheless,Woodward v Hutchins [1977] 1WLR 760 has never been overruled; and itssubject matter has some commonalty with our case, since it concerned thedismissed publicity agent of a well-known group of singers who wished towrite a series of articles dealing with their private lives and conduct.

34 The group failed to obtain an interlocutory injunction to preventpublication. The decision was based on two grounds. First, the only reasongiven by Lawton LJ, with whom Bridge LJ agreed in full, was that to grantinterlocutory relief in a case where there were concurrent claims in breach ofcon�dence and defamation would or might undermine the rule in Bonnard vPerryman [1891] 2 Ch 269, preventing interlocutory relief in a defamationcase where it is proposed to justify. Lord Denning MR took the same view;but his main reason was that articulated by Bridge LJ [1977] 1 WLR 760,765:

��It seems to me that those who seek and welcome publicity of everykind bearing upon their private lives so long as it shows them in afavourable light are in no position to complain of an invasion of theirprivacy by publicity which shows them in an unfavourable light.��

35 Eady J, at para 103, thought that the application in Woodward vHutchins failed because the revelations were in the public interest. It wouldhowever seem that the view of Lord Denning MR and Bridge LJ was morefundamental than that, in that they thought that in the circumstances theenjoined material was not con�dential at all.

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36 Woodward v Hutchins has come in for a good deal of criticism, ofwhich the point most relevant to our inquiry is that the court was notreminded of the relevance of the contractual relationship between the agentand his former employers. That largely deprives the decision of any directauthority in or relevance to our case. But there is another reason why in anyevent Woodward v Hutchins is of no assistance to us. We were constantlyreminded, not least by the �rst defendant, that all of these cases are fact-sensitive. I have set out the judge�s �ndings of fact about the �rst claimant�sattitude to publicity in para 6 above. That is very far di›erent from the sortof conduct and attitude that, in the view of Bridge LJ, would deprive aperson�s behaviour of the quality of con�dence.

VonHannover v Germany37 We shall have to return to this authority in connection with

article 10, but it also has some relevance to the reach of article 8. There islittle doubt that Von Hannover v Germany 40 EHRR 1 extends the reach ofarticle 8 beyond what had previously been understood, which is no doubtwhy the �rst defendant and, more particularly, the media parties put beforeus a series of reasons why we should be wary of the case. I am quite clearthat, for the reasons already set out and as given by the judge, the �rstclaimant can establish her position under article 8 without going anywherenear Von Hannover�s case; but since the case was much debated before us,and was referred to by the judge, it is necessary to say something about it inrelation to article 8.

38 Princess Caroline of Monaco sought to prevent the publication intwo German magazines of photographs of her indulging in what must besaid to have been fairly banal activities in public or e›ectively public places.The European Court of Human Rights held that by refusing her relief theGerman courts had failed in their duty to respect private life under article 8.The court�s most general statement was at para 50 (cited by Eady J inpara 50 of his judgment):

��Furthermore, private life, in the court�s view, includes a person�sphysical and psychological integrity; the guarantee a›orded by article 8of the Convention is primarily intended to ensure the development,without outside interference, of the personality of each individual inhis relations with other human beings. There is therefore a zone ofinteraction of a person with others, even in a public context, which mayfall within the scope of �private life�.��

Based on that general principle, the European Court of Human Rights held,at para 53, that ��In the present case there is no doubt that the publication byvarious German magazines of photos of the applicant in her daily life eitheron her own or with other people falls within the scope of her private life��.

39 Eady J suggested, at para 58, that that approach was consistent withthe assumption in Campbell v MGN Ltd [2004] 2 AC 457 that article 8protected a person�s reasonable expectation of privacy. That is so in broadterms, but at the same time it is far from clear that the House of Lords thatdecided Campbell�s case would have handled Von Hannover�s case in thesame way as did the European Court of Human Rights. Very extensiveargument and discussion was seen as required before Ms Campbell wasable to enjoin the publication of photographs of her in the public street, and

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then only because of their connection with her medical condition. Had theHouse had the bene�t of Von Hannover�s case a shorter course might havebeen taken.

40 That does not however mean (to anticipate an argument that willarise again under article 10) that the English courts should not now giverespectful attention to Von Hannover�s case. The House of Lords inCampbell�s case made no speci�c �ndings as to the content of article 8 savein the very general terms extracted by Eady J. As it is put in a work shown tous by the media parties, Fenwick & Phillipson, Media Freedom Under theHuman Rights Act (2006), p 764, ��the test propounded�of a reasonableexpectation of privacy, of whether the information is obviously private�isto be structured by reference to the article 8 case law��. It thus remains forthe national court to apply that case law, as it currently stands, to the factsbefore it. It was therefore certainly open to Eady J to have regard to VonHannover�s case in relation to the very di›erent facts of the present case.

41 Perhaps realising the force of observations such as the foregoing, themedia parties, in particular, were most anxious to persuade us that theEuropean Court of Human Rights went no further in Von Hannover�s casethan to hold that the Princess�s privacy had been invaded by a campaign ofmedia intrusion into her life, of which the enjoined photographs were thefruit. The taking and publication of the photographs would otherwise nothave been in itself an invasion of privacy. They cited in support someobservations of Fenwick& Phillipson at p 768 of their book, though it is fairto say that the learned authors also say that that analysis is not without itsdi–culties. The judge, at para 53, did not accept that analysis, nor would I.While it is quite correct that there is reference in the judgment of theEuropean Court of Human Rights to media intrusion, it is not possible to saythat the general statements of principle set out in para 38 above are solimited. And Mr Browne was able to show us authority from the EuropeanCourt of Human Rights decided since Von Hannover�s case that appliesthose statements in situations that were not ones of media intrusion. Ofthose, the most signi�cant is Sciacca v Italy (2005) 43 EHRR 400, paras 27and 29 of the judgment of the European Court of Human Rights applyingVon Hannover�s case to a case that was not one of press harassment, andciting the jurisprudence ofVonHannover�s case in entirely general terms.

42 I would therefore conclude that to the extent that it is the �rstdefendant�s case that the judge should not have had regard to VonHannover�s case when considering the �rst question of whether article 8was engaged; and to the extent if at all that the issue matters for thedetermination of this part of the case; that complaint is unfounded.

The contractual obligations43 When Mr Fowkes and the �rst defendant were embarking on the

tour referred to in para 4 above the �rst claimant caused them to bepresented for signature with a written contract that set out signi�cantobligations of con�dentiality. Mr Fowkes signed, the �rst defendant did notdo so until the tour was long over. Eady J held, at para 129, that the �rstdefendant well knew that she was bound in any event by obligations ofcon�dentiality, and indeed had given that as her reason for not signinganything. To the extent that it matters, it would appear that, by going on thetour and continuing in employment and association with the �rst claimant

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when, as the judge found, she well knew of the contractual terms, the �rstdefendant adhered to those terms: and I would be prepared to read the judgeas having so found. But the reality of the matter was, as the judge said atpara 130, that the provisions of the written contract did not add much to theobligations that the �rst defendant owed in equity by reason of the closenessof her personal relationship with the �rst claimant.

44 I revert to the matter directly in issue. The judge was right to holdthat the �rst claimant had succeeded in demonstrating that the matters thathe enjoined fell under article 8. I must therefore now go on and consider the�rst defendant�s argument that her article 10 rights of expression in respectof those matters outweighed that article 8 protection.

Article 10: the balancing exercise

The role of this court45 Despite the very extensive analysis of the facts and issues that the

speeches contain, the ratio of the majority of the House of Lords inCampbell v MGN Ltd [2004] 2 AC 457 appears to have been that, in theabsence of an error of principle on his part, the Court of Appeal should nothave interfered with the trial judge�s assessment of the balance betweenarticles 8 and 10: see per Baroness Hale, at para 158, and Lord Hope, atparas 87 and 101, together with Lord Hope�s criticism of the unreality of theapproach of the Court of Appeal, at para 99, the latter view being endorsedby Lord Carswell, at para 165 of his speech. That approach is, with greatrespect, plainly correct. It was properly, albeit inevitably, adopted byMr Price. The very short answer to this part of the appeal is, therefore, thatthe judge indeed made no error of principle, and therefore his conclusionrejecting the �rst defendant�s case under article 10 must stand. However,lest that seems too bloodless a resolution of the disputes, and in order todemonstrate that the judge indeed made no error of principle, I will descendinto somewhat greater detail.

The judge�s methodology46 In a passage headed ��A need to balance Convention rights�� the

judge, basing himself on Campbell�s case and on In re S (A Child)(Identi�cation: Restrictions on Publication) [2005] 1 AC 593, set out theprinciples to be applied when article 8 rights were relied on to restrainpublication. No criticism was made of the formulation or the relevance ofthose principles, nor could it have been made. The judge�s principles were:(i) neither article has as such precedence over the other; (ii) where con�ictarises between the values under articles 8 and 10, an ��intense focus�� isnecessary upon the comparative importance of the speci�c rights beingclaimed in the individual case; (iii) the court must take into account thejusti�cations for interfering with or restricting each right; and (iv) so too, theproportionality test must be applied to each.

47 Three comments may be made. First, it was a recurrent complaint ofthe �rst defendant that the judge had not paid respect to or appliedsection 12(4) of the 1998 Act, which requires ��particular regard�� to be paidto the article 10 right. But from his statement of the principles the judgeclearly had in mind what was said by Lord Steyn in In re S (A Child) atpara 17, that neither article 8 nor article 10 ��as such�� has precedence over

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the other. That guidance bound him, as it binds us. Second, it is well worthnoting that one of the cases speci�cally mentioned in article 10(2) ispreventing the disclosure of information received in con�dence.

48 Third, the �rst defendant complained that the judge, whenaddressing the individual items of which complaint is made, had not thenapplied the balancing test separately to each one of them. But that con�ictswith what the judge said, at para 67:

��I need naturally to consider each of the passages in the book singledout for complaint separately, not only to decide whether in each case thethreshold test for privacy is passed (that is to say, whether or not therewould be a reasonable expectation of privacy), but also to consider, ifthat initial test has been satis�ed, whether any other �limiting factor�comes into play such as public domain or public interest.��

The suggestion that the judge, having so directed himself, needed none theless to repeat that direction as a mantra every time he came to a speci�c issueis quite unreal. And when signi�cant issues in relation to article 10 did arisein a particular instance those issues were addressed by the judge separatelyfrom the general guidance that he had given himself.

49 However, I need to address some general complaints raised by the�rst defendant. Those were that the judge had not respected the right of the�rst defendant to tell her own story; a complaint that the judge had not givensu–cient weight to the extent to which information in the book was alreadyin the public domain; and a complaint that the judge had undervalued thepublic interest in the disclosure that the �rst defendant wished to make, inthe course of that analysis failing to follow the binding guidance of this courtinAv B plc [2003] QB 195.

The �rst defendant�s right to tell her own story50 A concern that the �rst defendant might have been deprived of her

article 10 right to tell her own story was one of the matters that weighedwith the court that was persuaded to grant permission to appeal. The pointfeatured heavily in the �rst defendant�s argument, strong reliance beingplaced on the observation inAv B plc [2003] QB 195, para 11(xi) that:

��the fact that the con�dence was a shared con�dence which only one ofthe parties wishes to preserve does not extinguish the other party�s rightto have that con�dence respected, but it does undermine that right.��

Based on that, the argument then moved to the striking proposition that thejudge should have held that the �rst claimant�s article 8 rights, if any, were tobe subordinated to the article 10 rights of the �rst defendant.

51 That argument again completely ignores the judge�s �ndings of fact.He held that the con�dence was ��shared�� only in the sense that the �rstclaimant had admitted the �rst defendant to her con�dence, whichcon�dence the �rst defendant knew should be respected: see para 16 above.As a result, the �rst defendant had no story to tell that was her own asopposed to being the �rst claimant�s: see paras 30—31 above. And, even ifthat were not so, it needs no intense focus to conclude that on the facts theright of the �rst defendant must yield to the right of the �rst claimant.

52 A major part of the �rst defendant�s article 10 case thus fails. Nor,for the record, was it at all fair to the judge to say that he had simply ignored

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that article 10 right. He devoted a section of his judgment to the issue, atpara 77, though he did not express himself in quite the terms set out above.

The public domain

53 It is perhaps inevitable that, although the inquiry is now underarticle 10, it still tends to be conducted in the traditional terms of the Englishlaw of con�dence. As we shall in due course see, that is particularly the casein A v B plc. But the general principle is no doubt correct in both cases, thatinformation that is already known cannot claim the protection of privatelife. Mr Price however advanced a striking extension of that principle, thatonce a person had revealed or discussed some information falling within aparticular ��zone�� of their lives they had a greatly reduced expectation ofprivacy in relation to any other information that fell within that zone. Thisargument was used in particular in respect of the �rst defendant�s revelationsabout the �rst claimant�s health and her distress at the death of her �anc�.The material said to contain revelations by the �rst claimant falling withinthe same zone were remarkably sparse, which is in itself an indication ofhow protective the �rst claimant has been of her privacy. The judge dealtwith the argument in these terms, at paras 79—80:

��79. . . . Ms Ash produced a number of articles on the basis of whichshe argued that, at least in certain respects, Ms McKennitt had revealedaspects of her personal life and beliefs to the general public. She chose tocon�ne her submissions to a limited number of articles, partly for reasonsof time, although it is reasonable for me to proceed on the basis that sheselected the examples which she thought best illustrated her point. If thatis so, I did not �nd the submission very compelling in the light of thematerial contained in the book. Conversations with, or behaviour in thepresence of, close personal friends would appear to me to be signi�cantlydi›erent from the sort of material revealed by Ms McKennitt in the past.Also, as I have already pointed out, there is in this context a signi�cantdi›erence between choosing to reveal aspects of private life with whichone feels �comfortable� and yielding up to public scrutiny every detail ofpersonal life, feelings, thoughts and foibles of character.

��80. In any event, it is important that a large proportion of the materialMs Ash relied upon was speci�cally revealed by Ms McKennitt in thecontext of her attempts to promote water safety and to support the Cook-Rees Memorial Fund. A classic example is provided by an interview inMay 1999 with the journal �Le Lundi�. It is somewhat surprising thatMs Ash should think that this carefully measured, and no doubt in itselfdistressing, exposure of her own feelings in a particular context shouldgive her the right to reveal at considerable length what Mr Brownedescribed as �her pitifully grief-stricken reaction to the death of [her�anc�], his brother and a friend�. It goes on for some eight pages. One�sreactions and communications to a friend in the immediate aftermath ofpersonal bereavement are surely a classic example of material in respectof which there would a �reasonable expectation� that one�s privacy wouldbe respected.��

54 I respectfully agree. It was cruelly insensitive to use the �rstclaimant�s promotion of the Cook-Rees fund, and her explanation of her

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reasons for setting up the fund, to suggest that she had thereby opened upwhole areas of her private life to intrusive scrutiny.

55 Mr Price expressed concern at the judge�s view that a person canlimit publication to what he wishes to be published. But, with respect, thejudge seems to me to have been completely right. If information is myprivate property, it is for me to decide how much of it should be published.The ��zone�� argument completely undermines that reasonable expectation ofprivacy. Mr Price�s real concern was, I think, not with the judge�s view ingeneral terms, but with the possibility that he thought to be contained withinit that a public �gure could censor or control what was published aboutthem. That raises questions of a di›erent order, to which I now turn.

The public interest: and the �rst claimant as a public �gure56 One might instinctively think that there was little legitimate public

interest in the matters addressed by the book, and certainly no public interestsu–cient to outweigh the �rst claimant�s article 8 right to private life. Thatis what the judge thought and, as already pointed out, in the absence of errorof principle his view will prevail. That conclusion was contested under thishead in two respects, which it is necessary to keep separate. First, there wasa legitimate public interest in the a›airs of the �rst claimant because she wasa public �gure, and for that reason alone. Second, if a public �gure hadmisbehaved, the allegation in the present case being of hypocrisy, the publichad a right to have the record put straight. The parallel for that argumentwas the case of Ms Campbell, who could not retain privacy for the fact thatshe was a drug addict because she had lied publicly about her condition.

57 The �rst of these arguments involves consideration of two recentauthorities, already introduced, Von Hannover v Germany 40 EHRR 1 andAv B plc [2003] QB 195, to which I must now return.

VonHannover v Germany58 There is no doubt that the European Court of Human Rights has

restated what were previously thought to be the rights and expectations ofpublic �gures with regard to their private lives. The court recognised theimportant role of the press in dealing with matters of public interest, and thelatitude in terms of mode of expression there provided: 40 EHRR 1, para 58.But a distinction was then drawn between a watchdog role in thedemocratic process and the reporting of private information about peoplewho, although of interest to the public, were not public �gures. TheEuropean Court of Human Rights said, at paras 63—64:

��63. The court considers that a fundamental distinction needs tobe made between reporting facts�even controversial ones�capable ofcontributing to a debate in a democratic society relating to politicians inthe exercise of their functions, for example, and reporting details of theprivate life of an individual who, moreover, as in this case, does notexercise o–cial functions. While in the former case the press exercises itsvital role of �watchdog� in a democracy by contributing to �impart[ing]information and ideas on matters of public interest� it does not do so inthe latter case.

��64. Similarly, although the public has a right to be informed, whichis an essential right in a democratic society that, in certain special

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circumstances, can even extend to aspects of the private life of public�gures, particularly where politicians are concerned, this is not the casehere. The situation here does not come within the sphere of any politicalor public debate because the published photos and accompanyingcommentaries relate exclusively to details of the applicant�s private life.��

59 There is more in the same sense. If we follow in this case theguidance given by the English courts, that the content of the law ofcon�dence is now to be found in articles 8 and 10 (see para 10 above), then itseems inevitable that the �rst defendant�s case must fail. Even assuming thatthe �rst claimant is a public �gure in the relevant sense (which propositionI suspect the European Court of Human Rights would �nd surprising), thereare no ��special circumstances�� apart from the allegation of hypocrisy dealtwith in the next section to justify or require the exposure of her private life.But the �rst defendant argued that English courts could not follow or applyVon Hannover�s case to the facts of the present case because we were boundby the contrary English authority of A v B plc [2003] QB 195. Thate›ectively required the �rst claimant�s private a›airs to be exposed to theworld, hypocrite or not.

Av B plc60 The facts have already been set out. The judgment of this court is

notable for the detailed guidance that it contains as to how a court shouldaddress complaints about invasion of privacy by public or allegedly public�gures. The �rst defendant placed particular reliance on the court�spara 11(xii):

��Where an individual is a public �gure he is entitled to have his privacyrespected in the appropriate circumstances. A public �gure is entitled to aprivate life. The individual, however, should recognise that because of hispublic position he must expect and accept that his actions will be moreclosely scrutinised by the media. Even trivial facts relating to a public�gure can be of great interest to readers and other observers of the media.Conduct which in the case of a private individual would not be theappropriate subject of comment can be the proper subject of comment inthe case of a public �gure. The public �gure may hold a position wherehigher standards of conduct can be rightly expected by the public. Thepublic �gure may be a role model whose conduct could well be emulatedby others. He may set the fashion. The higher the pro�le of the individualconcerned the more likely that this will be the position. Whether youhave courted publicity or not you may be a legitimate subject of publicattention. If you have courted public attention then you have less groundto object to the intrusion which follows. In many of these situations itwould be overstating the position to say that there is a public interest inthe information being published. It would be more accurate to say thatthe public have an understandable and so a legitimate interest in beingtold the information. If this is the situation then it can be appropriatelytaken into account by a court when deciding on which side of the line acase falls. The courts must not ignore the fact that if newspapers do notpublish information which the public are interested in, there will be fewernewspapers published, which will not be in the public interest. The sameis true in relation to other parts of the media.��

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61 The �rst defendant relied on two parts of this account. First, that��role models��, voluntary or not, have less expectation of privacy. That wasreinforced by a later passage in the judgment, at para 43(vi):

��Footballers are role models for young people and undesirablebehaviour on their part can set an unfortunate example. While [the trialjudge] was right to say on the evidence which was before him that A hadnot courted publicity, the fact is that someone holding his position wasinevitably a �gure in whom a section of the public and the media wouldbe interested.��

The �rst claimant, it was said, was inevitably a �gure in whom a section ofthe public would be, and was, interested. Second, the general interest insupporting the ��media�� in the publication of the sort of material that sellsnewspapers should extend to biographies and literary works generally, suchas the book was claimed to be.

62 The width of the rights given to the media by A v B plc cannot bereconciled with Von Hannover�s case. Mr Price said that whether that wasright or wrong, we had to apply A v B plc, in the light of the rule ofprecedent laid down by the House of Lords in Kay v Lambeth LondonBorough Council [2006] 2 AC 465, in particular by Lord Bingham ofCornhill, at paras 43—45. Put shortly, the precedential rules of Englishdomestic law apply to interpretations of Convention jurisprudence. Where,for instance, the Court of Appeal has ruled on the meaning or reach of aparticular article of the Convention, a later division of the Court of Appealcannot depart from that ruling simply on the basis that it is inconsistentwith a later, or for that matter an earlier, decision of the European Court ofHuman Rights.

63 I would respectfully and fully agree with the importance of that rule.The alternative, as an earlier constitution of this court said, is chaos. ButI do not think that the rule inhibits us in this case from applying VonHannover�s case. If the court inAv B plc had indeed ruled de�nitively on thecontent and application of article 10 then the position would be di›erent;but that is what the court did not do. Having made the importantobservation that the content of the domestic law was now to be found in thebalance between articles 8 and 10, the court then addressed the balancingexercise e›ectively in the former English domestic terms of breach ofcon�dence. No Convention authority of any sort was even mentioned. Itmay well be that aspect of the case that caused a later division of this courtto comment, per Lord Phillips of Worth Matravers MR in Campbell vMGNLtd [2003] QB 633, paras 40—41:

��40. . . . When Lord Woolf CJ spoke of the public having �anunderstandable and so a legitimate interest in being told� information,even including trivial facts, about a public �gure, he was not speaking ofprivate facts which a fair-minded person would consider it o›ensive todisclose. That is clear from his subsequent commendation of theguidance on striking a balance between article 8 and article 10 rightsprovided by the Council of Europe Resolution 1165 of 1998.

��41. For our part we would observe that the fact that an individual hasachieved prominence on the public stage does not mean that his privatelife can be laid bare by the media. We do not see why it should necessarily

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be in the public interest that an individual who has been adopted as a rolemodel, without seeking this distinction, should be demonstrated to havefeet of clay.��

64 However that may be, and wherever that leaves courts that wouldhave to apply the guidance given in A v B plc, it seems clear that A vB plc cannot be read as any sort of binding authority on the content ofarticles 8 and 10. To �nd that content, therefore, we do have to look toVon Hannover�s case. The terms of that judgment are very far awayfrom the automatic limits placed on the privacy rights of public �gures byA v B plc.

65 But, in any event, even if we were to follow A v B plc, theguidance that that case gives does not produce the outcome in our casethat is sought by the �rst defendant. First, as to the position of the �rstclaimant, she clearly does not fall within the �rst category mentioned byLord Woolf CJ, and ��hold a position where higher standards of conductcan be rightly expected by the public��: that is no doubt the preserveof headmasters and clergymen, who according to taste may be joinedby politicians, senior civil servants, surgeons and journalists. Second,although on one view the �rst claimant comes within Lord Woolf CJ�ssecond class, of involuntary role models, I respectfully share the doubts ofLord Phillips MR, set out in para 63 above, as to the validity of thatconcept; and it would in any event seem di–cult to include in the class aperson such as the �rst claimant, who has made such e›orts not to holdherself out as someone whose life is an open book. Third, it is clear thatLord Woolf CJ thought that role models were at risk, or most at risk, ofhaving to put up with the reporting of disreputable conduct: such as wasthe conduct of the claimant before him. The �rst claimant does not fallinto that category; but to make that good I need to go on to the secondpart of this argument, that exposure is legitimate to demonstrate improperconduct or dishonesty.

66 In so doing I have not overlooked Lord Woolf CJ�s second generalpoint, that weight must be given to the commercial interest of newspapers inreporting matter that interests the public. That view has also receivedcriticism, and it seems clear that this court in Campbell�s case, in the passagecited above, was not entirely happy with it. It is di–cult to reconcile withthe long-standing view that what interests the public is not necessarily inthe public interest, a view most recently expressed by Baroness Hale inJameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359,para 147:

��The public only have a right to be told if two conditions are ful�lled.First, there must be a real public interest in communicating and receivingthe information. This is, as we all know, very di›erent from saying thatit is information which interests the public�the most vapid tittle-tattleabout the activities of footballers� wives and girlfriends interests largesections of the public but no one could claim any real public interest inour being told all about it.��

It is fortunately not necessary to pursue that issue further, because it ismerely a general factor that cannot be said to have any signi�cant impact onthe present case.

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Hypocrisy67 This is the charge brought against the �rst claimant, which is said to

justify telling the world about her private behaviour and a

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