Court of Appeal rejects "tenuous claim to privacy"

Facts
Appeal
Comment

Facts

Can anyone expect to keep a second family private? That was the ambitious hope of Chris Hutcheson, the father-in-law of celebrity chef Gordon Ramsay. Hutcheson married in 1968 and he and his wife had four children, all now grown up. He remains married to his wife. However, from about 1976 he began conducting a relationship with another woman, with whom he had two children in 1979 and 1981. For many years he managed to keep the existence of his second family secret from his first family, but by the time he went to court against the press in 2010, they had become aware of his other family. Nonetheless, he had managed to keep the secret from at least one of the children of his first marriage for over 30 years.

The Sun newspaper became aware of the story, which was interesting to it not only due to Hutcheson's connection to Ramsay, but also because Hutcheson had been the chief executive of the company that ran Ramsay's restaurants and other business interests. Hutcheson had recently been sacked as chief executive; it appeared that this might have been connected with the cost of running his second family, although Hutcheson has denied any impropriety. A public dispute ensued between Hutcheson and Ramsay. Although the existence of Hutcheson's second family was hinted at, Ramsay did not expressly use the information in his statements to the media.

Application for injunction
Hutcheson applied for an injunction to prevent The Sun from publishing the fact that he had a second family. He argued that the existence of his second family was not public knowledge, and that he had a reasonable expectation of privacy in that information, despite it being known to his first family by this time. The Sun argued that Hutcheson had no such expectation: he had put a large quantity of information about private family matters into the public domain and it would be unfair to allow his version of events to stand without permitting a full account of those family matters to be published.

The evidence before the court was that Hutcheson had played a full part in raising the children of his second family, and they had taken his name (as had their mother). However, the relationship had otherwise been conducted in private, such that people generally did not know that Hutcheson had two families.

Hutcheson gave evidence that publicity would have an adverse impact on his two families, but the members of the families did not provide evidence. Hutcheson stated that he was not particularly concerned about the effect of publicity on himself.

Justice Eady was not persuaded that Hutcheson had a reasonable expectation of keeping his second family secret. He stated that:

"I would accept that Article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the 'second' family or to the Claimant's extra-marital relationship. It is a 'bare fact' case; that is to say, the court is concerned only with the bare fact of the familial relationship (as was the case, for example, in Donald v Ntuli). Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the 'second family'."

In case he was wrong on this point, the judge proceeded to the second-stage test by examining the public interest considerations. He began by noting that Hutcheson was not, in his view, a public figure; rather, he was an "ordinary private citizen". There was no inherent public interest in the fact that such a person had a second family; nor could it be said that because he had talked publicly about certain aspects of his family life, he had thereby exposed his whole private life. The 'zonal' argument had been discredited in McKennit v Ash and subsequently.

However, the judge held that there was potential public interest in exposing wrongdoing, including possible misappropriation of corporate funds, and there was also a public interest in ensuring that the public was not misled by the statements of someone involved in a matter that had come to the public's attention. It would be wrong for Hutcheson to use the law of privacy to prevent a party to a dispute from bringing to public attention certain details of the dispute because they might be unflattering to him. If Hutcheson were defamed, he would have the right to sue for libel. Therefore, the judge declined to grant an injunction.

Appeal

Hutcheson appealed to the Court of Appeal. On May 25 2011 the Court of Appeal dismissed the appeal and announced that its reasons would follow later. A number of newspapers published stories about the case.

In July 2011 the Court of Appeal provided its reasons for dismissing the appeal and upholding the refusal of an injunction. The court declined to decide whether Hutcheson had a reasonable expectation of privacy in the fact of his second family's existence. It was instead content to proceed to the second stage on the assumption that the information was protected.

On the second-stage test, the court held that the balance was against granting an injunction. There was a real risk of a distorted and partial picture of the dispute between Hutcheson and Ramsay being presented to the public if the fact of Hutcheson's second family could not be mentioned. Moreover, subject to the law of defamation, there was a clear public interest in The Sun being free to publish the fact of Hutcheson's second family in order to authenticate the allegation of diversion of corporate funds for private purposes.

Without deciding that Hutcheson had a reasonable expectation of privacy - it being unnecessary to do so because of its decision on the balancing exercise - the Court of Appeal expressed the view that Hutcheson's claim was "borderline". It noted that:

• Hutcheson had effectively discounted his own claim to privacy, which essentially turned on the impact of publication on his two families;
• it was noteworthy that there was no evidence from those family members - if they had claims to protection, they should have spoken for themselves;
• it was no longer open to Hutcheson to claim privacy on the grounds that his first family did not know about the second family - the implication being that his claim would have been stronger had his first family remained in ignorance; and
• there was a "public dimension" to Hutcheson's second family, which was a factor to be weighed in the balance.

In summary, Lord Justice Gross considered that the case involved "a strong claim to freedom of expression in the public interest, against which there was, in the balance and, at best, a tenuous claim to privacy".

Comment

The Court of Appeal's analysis of the legal framework of privacy protection, which covers Paragraphs 17 to 35 of the judgment, is required reading. A number of points are worth highlighting:

• In considering the notion of 'personal autonomy', as protected by Article 8 of the European Convention on Human Rights, the court adopted the statement of principle by Lord Justice Laws in Wood v Metropolitan Police:

  "This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's personal autonomy must (if article 8 is to be engaged) attain 'a certain level of seriousness'. Secondly, the touchstone for article 8(1)'s engagement is whether the claimant enjoys on the facts a 'reasonable expectation of privacy'… Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2)."

• The court placed particular emphasis on the statement that the Article 8 right "should not be read so widely that its claims become unreal and unreasonable", and noted that "there is no question of Article 8 furnishing an absolute right to privacy".
• The fact that private information has become known to some people, or even a section of the public, does not of itself preclude a claim for an injunction to prevent it from becoming known to the public at large.
• A complaint of misuse of private information is necessarily fact sensitive. The fact that Article 8 is engaged (ie, applies to the situation in question) does not mean, without more, that Article 8 has been breached. In a two-stage process, the first question is whether Article 8 is engaged. If so, the second question arises as to whether it has been breached. The issue of reasonable expectation of privacy is not answered simply by asking the question of whether the claimant's Article 8 right is engaged.
• In assessing reasonable expectation, the nature of the information is crucial. There may be privacy in the details of a sexual relationship, but not necessarily in the fact that it exists.
• Evidence will be required of the Article 8 rights of those who are said to be affected. The court noted Justice Tugendhat's statement in Terry that "respect for the dignity and autonomy of the individuals concerned requires that, if practicable, they should speak for themselves".
• The court also noted, with apparent approval, the rejection in Terry of Terry's counsel's submission that a newspaper should not be permitted to criticise a person's private conduct unless it happens to be unlawful. It was noted that "the freedom to criticise (within the limits of the law) the conduct of other members of society as being harmful or wrong" is a valuable freedom, and that it is "as a result of public discussion and debate that public opinion develops".
• Significantly, the court noted the importance of the general principle of press freedom, including the press's ability to conduct its business commercially, to the way in which the law of privacy is applied:

"To some, applicants in privacy cases may seem unattractive. However, to others, intrusive media coverage of matters of sexual conduct, particularly if it includes salacious detail, may be equally unattractive. That said, for sections of the media, developments in privacy law impingeing on their ability to publish such matters may not only give rise to issues of principle as to freedom of expression in the individual case, but also to real commercial concerns - which, at least to the extent of the general public interest in having a thriving and vigorous newspaper industry, representing all legitimate opinions, may also be argued to give rise to a relevant factor for the court to take into account."

For further information on this topic please contact Keith Mathieson at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (keith.mathieson@rpc.co.uk).