Privacy and Information Everyone Knows

Today the Court of Appeal have given judgment on the question of whether to lift the injunction on publication of information concerning the sex life of a well known celebrity. They unanimously decided that the injunction should be lifted, but a stay of their order has been granted until Wednesday to enable the possibility of a further appeal to the Supreme Court to be heard (if the injunction were immediately lifted there would be no point in any further appeal).


Private Information and Defamation Contrasted

If I publish a story about you that is defamatory, it does not matter that this story is in the public domain, nor does it matter that I am simply repeating a story that has been told to me. The gist of the wrong is the damage to the claimant’s reputation, not that the story is private or unknown. So an injunction should be available to a right-holder even where the story is already in the public domain. This is a wrong that can be repeated over and over again.


The right to private information is quite different. The gist of the wrong is that private information is being disclosed. It is not the gist of the wrong that my reputation is damaged. If therefore the information is no longer private, it follows that the wrong cannot be repeated. Once the information is in the public domain, it can no longer be a wrong to publish it.


The decision of the Court of Appeal seems, at least to me, to be confused in at least two respects. First (at [47] (iii)) the court seem to think that publication today of the identity of the celebrity in question would still constitute a wrong to him or her.This seems doubtful as information that is now known by over half of the population cannot be described any longer as private (I inadvertently discovered the celebrity’s identity on twitter this afternoon).


Second the court seem to think that the defendant is in breach of article 8 of the European Convention on Human Rights  (see [40], [41], and [47]). This is complete nonsense. The Convention imposes no duties on private persons at all. The duty is a matter of judge made law. The judges have, rightly or (in my view) wrongly, decided that this right should reflect the right under the Convention but there is no question whatsoever of a breach of Article 8.


The decision no longer to restrain publication seems correct, but would a claim for damages now succeed? The answer should in principle be no (although the court indicate it would be yes). Publication of information that is now in the public domain should no longer be actionable. If the injunction had not been sought, the initial publication putting the information into the public domain would have been wrongful, and so actionable in damages. But now it is too late.


Ironically then, by seeking the remedy of an injunction, the claimant may have now lost the right to any remedy at all.


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