Lifting the lid on the media and privacy

After Clibbery, Keith Schilling runs the rule over other cases that affected privacy law and debates how much freedom the media should haveIn the age of the soundbite, cases can become authorities for propositions which, on closer analysis, they do not support.

The recent Court of Appeal case of Allan v Clibbery (see [2002] Gazette, 7 February, 5) - regarded by some as a legal charter for the 'kiss and tell' - is a debunking case in point.

The decision at first instance itself dispelled an earlier legal myth that any case heard in private in the Family Division could not be reported by the press at the behest of one of the parties.Mr Allan is a leading racehorse owner and trainer.

Ms Clibbery is, according to the Daily Mail article that gave rise to this litigation, a 'glamorous beauty', who was his girlfriend of 15 years.

They had never married - nor been engaged- and did not have children.

At the end of their relationship, Ms Clibbery wished to remain in Mr Allan's London apartment in Mayfair.

She applied to the County Court for a possession order under section 36 (1) of the Family Law Act 1996; this Act can give cohabitees up to six months' occupation.

The judge, sitting in chambers, dismissed Ms Clibbery's application on the grounds that the parties were not 'cohabitees'.

Ms Clibbery, with the co-operation of the Daily Mail, wished to alert members of the public to the lack of a concept of 'common law marriage' and to make 'women aware of how little rights they had'.

The article quoted Mr Allan's sworn written evidence in the County Court proceedings.

Ms Clibbery neither admitted nor denied that she was the source of the article, although the judge observed that 'it would seem fairly obvious that [Ms Clibbery] was indeed the source' and the case proceeded on that basis.

In the High Court proceedings - and at the Court of Appeal - Mr Allan sought to restrain additional revelations of what had occurred in the County Court chambers hearing.

He sought and obtained a without notice injunction from Mr Justice Connell, but on the with notice hearing Mr Justice Munby, after a detailed review of the authorities, refused to continue the injunction.

As was made clear in the final paragraph of Mr Justice Munby's judgment, his ruling was not intended to affect:l The practice in the Family Division in relation to children cases (that such proceedings are not reportable);l Breach of confidence obligations the parties may have towards each other - and the judge specifically cited Duchess of Argyll v Duke of Argyll [1967] Ch 302 (marital confidences), Stephens v Avery and Others [1988] Ch 449 (lesbian confidences) and Douglas v Hello! [2001] QB 967 (confidential information contained in wedding photographs), and;l Obligations arising out of the implied undertaking in connection with documents disclosed under compulsion in civil proceedings, for example, Home Office v Harman [1983] 1 AC 280.

So, the real issue in those proceedings was not whether each party to a sexual relationship owed the other a duty of confidence, but whether the mere fact that proceedings were held in private in the Family Division itself made any information disclosed in those proceedings confidential.

The answer was a qualified 'no'.The Court of Appeal largely upheld Mr Justice Munby's analysis of the law and also refused to continue the injunctions.

In the course of the Court of Appeal judgment, Jeremy Bentham, the utilitarian philosopher, was again pressed into service: 'Publicity is the very soul of justice.

It is the keenest spur to exertion and the surest of all guards against improbity.

It keeps the judge himself whilst trying under trial'.

Also invoked was the oft-cited article 10 (freedom of expression) of the European Convention on Human Rights.

However, open justice is largely a means to an end.

The paramount objective is that justice should be done and this may sometimes require proceedings to be heard in secret.So what the case is actually about - children cases and ancillary relief hearings aside - is that even proceedings which for administrative convenience are held in chambers (or in private) are, in the absence of any specific reporting restrictions imposed by the court, liable to be reported upon by the press at the request of a party without fear of contempt proceedings or breach of confidence per se.

In other words, there can be no breach of confidence simply because the proceedings are in private if the information itself is not inherently confidential.

This conclusion has provided a surprising result on the facts of this case.

Although the press was not allowed to be present, it was free to publish what transpired in chambers.

As Lord Justice Thorpe observed: 'A system that rigorously excludes the press from access to litigation material, but permits the parties to disseminate it elsewhere, may in some cases put a considerable monetary value on the litigation material'.Another recent Court of Appeal decision, this time on privacy, has also been interpreted as establishing a much wider proposition than it has on a fuller reading.

The Court of Appeal's decision in Home Office v Wainwright and another [2001] EWCA Civ 2081, delivered on the 20 December 2001, dealt with the question of whether any free- standing tort of privacy existed in English law, and concluded that it did not.

The case concerned security checks (strip searches) on visitors at a prison.

Arguably, this infringed the right to privacy under article 8 of the European Convention on Human Rights.However, the conduct complained of occurred on2 January 1997 prior to the Human Rights Act 1998 coming into force.

This meant that article 8 of the Convention - 'everyone has the right to respect for his private and family life, his home and his correspondence' - was not in force at the time and as the Act was clearly not retrospective the Lord Chief Justices' conclusion in Wainwright - that prior to the Human Rights Act 1988 there was no freestanding tort of privacy - is unsurprising.The question of whether breach of confidence has with the assistance of article 8 and the Data Protection Act ('sensitive personal data') now evolved so that it will protect against unwanted disclosures of a private nature, including surreptitious long-distance photography, will have to await Mr Justice Morland's reserved judgment in the case of Naomi Campbell v The Mirror next month.

This is the first privacy/confidentiality trial post Human Rights Act 1998.Keith Schilling is the senior partner of London based specialist media practice Schilling & Lom and Partners