The other day Justice Eady did something very peculiar. He granted an injunction in favour of mysterious shadowy married father and “high profile figure in the sports world” CC which prevents AB, the husband of BB – a woman with whom CC had a lengthy affair in England, the US, and Europe – from revealing the affair to the press or via the internet. This injunction is based on the law of confidence and consequently means that
“a spouse whose partner has committed adultery owes a duty of confidence to the third party adulterer to keep quiet about it”.
There are two noteworthy aspects. First, from a quick glance at the court rolls in Scotland this indicates that CC failed to raise an equivalent interdict action in Scotland (or if it was done it was carried out surreptitiously which is possible, although some newspapers may have had na interest in objecting to any application). In the Spycatcher case the failure of the government to raise an equivalent action in Scotland meant that the Scottish press could gleefully report Peter Wright’s allegations long before the English media. If dealing with really famous people perhaps the legal avdisers should take into account that we have three jurisdicitons in the UK or the Scottish media might start sniffing around the stories (although they have not as yet which suggests the person may not be that famous or their journalistic standards are rather higher than our neighbours – although we have yet to get Sunday’s Scottish News of the World which often leads on different stories to those promoted south of the border). In the past this failure to take account of the fact that English law only applies in England (and Wales) and accordingly English courts, contrary to the beliefs of some English judges, only has authority within England (and Wales) has meant that a quick internet search of Australian newspapers, for example, has revealed the information the English media cannot publish. Nothing of that sort here (as yet) so it can’t be a cricketer 😉 .
Second, the action is based on confidence. The use of the law of confidence is the usual trick adopted by the famous in attempts to keep their stories out of newspapers (and indeed forms the basis of the DOuglas v Hello case which was heard in the House of Lords a couple of weeks ago). Historically confidence was used where there was a commercial relationship (for example banker-customer), although over time developed to cover doctor-patient matters, and in the 1990s this was extended to allow a police informer to be protected from revelation of identity by the police. Addiitonally, the early confidence cases required the party seeking to enforce a duty of confidence to show that he or she had given the information to the other party although the Court of Appeal in the Douglas v Hello case tried to depart from that.
In recent years the leading case on breach of confidence has been the Spycatcher case where Lord Goff defined the basis for the action.
“Confidential information comes to the knowledge of a person, the confidant, in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others”.
The CC case seems to push this somewhat. Although to be fair to Justice Eady, this was an interim injunction case where detailed legal argument will not have been presented. However, it seems to me that the incremental development of breach of confidence is dishonest. If the courts wish to develop a law of privacy they should do so expressly (as was suggested in the Court of Appeal in Douglas v Hello). Using a bastardised version of the law of commercial confidence is inappropriate.