Privacy, Confidence and Press Freedom: A Study in Judicial Activism

Abstract

One interesting and as yet unremarked feature of the House of Lords' decision in A-G v Guardian Newspapers Ltd (No 2)' is the unexpected support it lends to a case which passed relatively unnoticed earlier in the year and yet which signalled a development more significant for press freedom than even Spycatcher itself. It now appears that a substantial shift in the balance between privacy and press freedom is in prospect. Such a shift may well be beneficial in curbing the excesses of 'exposure journalism' in the tabloid newspapers. However the extended judicial role of policing the boundaries between the private and public interest made necessary by this shift may appear decidedly sinister to some. The development is also important on quite another level. It affords us a fascinating glimpse of how doctrine is 'constructed' rather than simply developing organically to meet novel circumstances. It provides another example of how the mechanical neutrality of precedent can mask the most dramatic doctrinal changes. It presents us with the topical problem of the nature of legal obligations and how they may be differentiated from moral obligations, and raises the question whether the decision has blurred unacceptably the dividing line between the two. The case is Stephens v Avery,2 and the facts were as follows: The third defendants, a Sunday newspaper, published information disclosed by the plaintiff to Mrs Avery, the first defendant which related to a lesbian relationship between the plaintiff and a Mrs Telling. The background facts were that Mrs Telling was unlawfully killed by her husband apparently as a result of finding her and the plaintiff together in a compromising position. This information had been imparted by the plaintiff to the first defendant, allegedly in confidence. The plaintiff alleged further that, in breach of that confidence, the information was given to a newspaper journalist who worked for the third defendants. The plaintiff claimed damages for breach of confidence, alleging that the second and third defendants had published the information knowing that it was imparted to the first defendant in confidence and that the plaintiff had not authorised publication. The defendants applied to strike out the statement of claim on the ground that it disclosed no cause of action. Master Barratt refused the defendants' application. On appeal to the Vice-Chancellor, counsel for the defendants submitted, inter alia, that the law does not protect information relating to the sexual conduct or proclivities of an individual save to the extent that such conduct takes place between married parties. He submitted further that the circumstances of the communication were not such as to raise a duty of confidence, in that it was necessary to establish either a legally enforceable contract or a pre-existing relationship (e.g. marriage) for such an obligation to arise. In response to these submissions the Vice-Chancellor addressed himself to the principle established by the Court of Appeal in Saltman, summarised by Megarry J. in Coco v A.N. Clark (Engineers) Ltd.3