COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE LONGMORE
| Niema Ash and another
|- and -
|Loreena McKennitt and others
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
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Mr Desmond Browne QC and Mr David Sherborne (instructed by Messrs Carter-Ruck) for the Respondents
Crown Copyright ©
Lord Justice Buxton :
6. Ms McKennitt has vehemently asserted in these proceedings that she has always sought to keep matters connected with her personal and business life private and confidential. It was confirmed in evidence before me that, whenever a press conference or interview takes place, it is impressed upon those concerned that enquiries about her personal life are very much off limits. Indeed, it seems to have been accepted by Ms Ash (at least on page 313 of her book) that she protected her reputation and her privacy "with the iron safeguard of a chastity belt".
7. In so far as there have been exceptions to her primary rule of protecting her privacy, Ms McKennitt has emphasised that she has occasionally released some information which "she felt comfortable with", and in respect of which she was able to control the boundaries herself. This has apparently occurred mainly in connection with a charity which she founded and promoted in connection with water safety and the prevention of boating accidents. This followed a tragedy in 1998 when her fiancé (together with his brother and a friend) died in a drowning accident in Canada. She has accepted that, for these purposes, it is sometimes necessary to provide personal detail in order to bring home to people the risks inherent in sailing and the need to take precautions. The personal impact upon her highlights the dangers, she believes, in a way that could not be achieved by general and impersonal safety warnings. When, in this connection, Ms McKennitt has spoken about the death of her fiancé, she has done so on a controlled and limited basis with which, again, she "feels comfortable".
8. Ms McKennitt, therefore, places at the centre of her present claim the proposition that her private life and indeed her business affairs are entitled to protection on the basis of a duty of confidence, and are not in the public domain by reason either of her fame in itself or of the limited revelations to which I have referred.
The course of the appeal
this is an important and developing area of law where an appeal on these facts may help to clarify and define some of the relevant principles even if it does not alter the outcome
Possibly emboldened by that indication, the argument in this appeal has ranged widely, and certainly beyond the narrow limits of the facts of the case. While necessarily addressing some considerable part of that argument, I will need later in the judgment to bring us down to ground to the actual issues in this case. And also, alarmed by what appeared to be on foot, a representative range of media organisations, including Times Newspapers Ltd, the Press Association and the BBC, applied to intervene. We suggested that that matter could be managed not by a formal intervention but by our taking note, and asking the parties to take note, of the detailed submissions in the application to intervene, and the authorities there set out. The media parties (as I will refer to them) were good enough to agree to that course. We also received a letter from the Publishers Association, which we indicated to the parties that we had read. We took those steps without prejudice to the law or practice on intervention by commercial as opposed to public or public interest parties, which law and practice remains in a state of some uncertainty.
A taxonomy of the law of privacy and confidence
i) There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office  2 AC 406 -.
ii) Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be "shoehorned": Douglas v Hello! (No3) QB 125.
iii) That feeling of discomfort arises from the action for breach of confidence being employed where there was no pre-existing relationship of confidence between the parties, but the "confidence" arose from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use: as was the case in Douglas, and also in Campbell v MGN  2 AC 457. Two further points should however be noted:
iv) At least the verbal difficulty referred to in (iii) above has been avoided by the rechristening of the tort as misuse of private information: per Lord Nicholls of Birkenhead in Campbell  2 AC 457
v) Of great importance in the present case, as will be explained further below, the complaint here is of what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information.
Something more now needs to be said about the way in which the rules laid down by articles 8 and 10 enter English domestic law.
Under section 6 of the 1998 Act the court, as a public authority, is required not to act "in a way which is incompatible with a Convention right". The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.
in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed acts the person in question had a reasonable expectation of privacy.
Article 8: was the information private?
Ms McKennitt's personal and sexual relationships.
Her personal feelings and, in particular, in relation to her deceased fiancé and the circumstances of his death.
Matters relating to her health and diet.
Matters relating to her emotional vulnerability.
The detail of an unhappy dispute between Ms McKennitt, on the one hand, and Ms Ash and Mr Fowkes on the other, concerning monies advanced to them by Ms McKennitt to assist in the purchase of a property in 1997 and the subsequent litigation in the Chancery Division (which was settled on the basis of a Tomlin order without ever coming to a public hearing).
i) Item 4: what the Judge describes in his §17 as "a rather intimate conversation between Ms McKennitt and Ms Ash (which would otherwise certainly not have been in the public domain)"
ii) Item 5: what the Judge describes in his §18 as "extensive references in the book to Ms McKennitt's relationship with her fiancé, who died in the boating accident in 1998"
iii) Item 9: a detailed account of events at Ms McKennitt's cottage in Ireland, and of the physical arrangements there, including a period when Ms Ash and Mr Fowkes did building work at the cottage.
iv) Item 13: what the Judge described in his §13 as "intimate revelations" about the state of Ms McKennitt's health after the bereavement described in (ii) above.
v) Item 14: revelations about Ms McKennitt's fragile condition during a visit to Tuscany after the bereavement
vi) Item 15: discussion of terms and conditions of a contract entered into by Ms McKennitt with a recording company
vii) Item 34: an incident in a hotel bedroom shared by Ms McKennitt and Ms Ash; and a report of a telephone conversation in which Ms McKennitt revealed the state of her health.
A pre-existing relationship of confidence
71. It is also clear from a number of quite explicit passages in the book that Ms Ash realised that substantial parts of it, at least, would fall within the scope of a reasonable expectation of privacy or a duty of confidence. Mr Browne drew a number to my attention. At the beginning of the book, for example, Ms Ash actually describes an "intimate relationship of almost 20 years with an unfledged small town girl". She also announces to readers that she will be "releasing personality frailties previously concealed in the protective cocoon of anonymity". It is obvious that she was only able to do so by reason of the "intimate relationship".
72. On page 18, Ms Ash records that Ms McKennitt "confided to me" information about her London friends – which she then proceeds to reveal. Likewise, on page 84, she sets out another piece of information which she expressly states was "confided to me". The tit-bit in question may not be of particular significance, but it does illustrate that Ms Ash was well aware that some material was imparted to her in the context of a close friendship and that she is, nevertheless, prepared to reveal it in order to attract readers. The point is again emphasised on page 93, where she states, "She cared for us and we cared for her. We were her closest friends and she knew she could count on our unqualified loyalty". That is, of course, a fundamental aspect of Ms McKennitt's complaint.
73. Similarly, on page 82, she refers to "my friend Loreena who had revealed her innermost self to me; who had trusted me with her vulnerability". Two pages later, she describes herself and Mr Fowkes as "Loreena's close friends, [who] occupied a privileged, unique position".
74. The degree of intimacy between the two women is again emphasised on page 118:
"We talked non-stop. No topic was off-limit. Loreena told me about boyfriend problems, musician problems, office problems, plans for improving her Stratford farmhouse, her office, plans for her next album …".
On the next page she refers to the "real essence of our friendship":
"Our closeness was tangible. Loreena would always be there for me. I would always be there for her. Our trust was implicit. I no longer required an exchange of blood to cement friendship. I felt our bond to be so special it was like something secret. Nothing could diminish it. "
I am quite satisfied…that Ms Ash was only too aware, at the time of and prior to publication, that much of the content of the book would cause concern and distress to Ms McKennitt because of its intrusive nature. Accordingly, not only a reasonable person standing in her shoes, but Ms Ash herself would be conscious that she was thereby infringing the "trust" and "loyalty" to which she referred in the book. I shall consider the specific complaints in due course, although I need hardly add that it is not everything in the book which infringes privacy (and Ms McKennitt does not suggest otherwise).
135. Item 9 concerns Ms McKennitt's Irish cottage. It is not her only house, but it is nevertheless a home. That is one of the matters expressly addressed in Article 8(1) of the Convention as entitled to "respect". Correspondingly, there would be an obligation of confidence. Even relatively trivial details would fall within this protection simply because of the traditional sanctity accorded to hearth and home. To describe a person's home, the décor, the layout, the state of cleanliness, or how the occupiers behave inside it, is generally regarded as unacceptable. To convey such details, without permission, to the general public is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs.
136. True it is that over five or six years Mr Fowkes was engaged, from time to time, in renovation works at the cottage. Ms Ash, too, did a lot of hard work to make it habitable after Ms McKennitt acquired it in 1992. Some of the work was remunerated and some was not. That seems to me to make no significant difference. Whether one is allowed into a person's home professionally, to quote for or to carry out work, or one is welcomed socially, it would clearly be understood that the details are not to be published to the world at large.
There is a general discussion on page 26 [of the book] of the contractual terms and of concessions made. Even though it is general, it seems to me that Ms McKennitt is entitled to a reasonable expectation of privacy as to her contractual terms. They are certainly not for Ms Ash to reveal.
Although we would not go so far as to say there can be no confidentiality where one party to a relationship does not want confidentiality, the fact that C and D chose to disclose their relationships to B does affect A's right to protection of the information. For the position to be otherwise would not acknowledge C and D's own right to freedom of expression.
By the same token, it was suggested, Ms Ash's decision that her shared relationship with Ms McKennitt should not be treated as confidential undermined Ms McKennitt's contention that it was confidential.
Relationships of the sort which A had with C and D are not the categories of relationships which the court should be astute to protect when the other parties to the relationships do not want them to remain confidential.
Lord Woolf would have been unlikely to say the same about the relationship between Ms McKennitt and Ms Ash.
68. It would appear that the fundamental purpose of the book, which Ms Ash has described on its cover as "a must for every Loreena McKennitt fan", was to provide information to her admirers which would not otherwise be available. Much of the content of the book would be of no interest to anyone, I imagine, but for the fact that Ms McKennitt is the central character.
89. As I have already suggested, whatever Ms Ash's true appreciation of the situation may be, from her perspective, it is difficult for an outsider to understand how the book would be of any interest to the general reader if it were not for the fact that Ms Ash is giving an account of her intimate dealings with a person who is known to many millions of people, throughout the world, interested in folk music and her music in particular. Returning to the Boswell/Johnson analogy, one may characterise the exercise to that extent as largely parasitic. It is the central role of Ms McKennitt, and the revelations about her, which provide the main reason for people to acquire the book. It is, I have no doubt, why her name appears in the title.
Woodward v Hutchins  1 WLR 760
authorities which relate to the action for breach of confidence prior to the coming into force of the 1998 Act…are largely of historic interest only.
Nevertheless, Woodward v Hutchins has never been overruled; and its subject-matter has some commonalty with our case, since it concerned the dismissed publicity agent of a well-known group of singers who wished to write a series of articles dealing with their private lives and conduct.
It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of the invasion of their privacy by publicity that shows them in an unfavourable light.
Van Hannover v Germany (2005) 40 EHRR 1
Furthermore, private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. … There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life".
Based on that general principle, the ECtHR held, in its §53, that "in the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life."
The contractual obligations
Article 10: the balancing exercise
The role of this court
The Judge's methodology
i) Neither article has as such precedence over the other.
ii) Where conflict arises between the values under Articles 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual case.
iii) The court must take into account the justifications for interfering with or restricting each right.
iv) So too, the proportionality test must be applied to each.
I need naturally to consider each of the passages in the book singled out for complaint separately, not only to decide whether in each case the threshold test for privacy is passed (that is to say, whether or not there would be a reasonable expectation of privacy), but also to consider, if that initial test has been satisfied, whether any other "limiting factor" comes into play such as public domain or public interest.
The suggestion that the Judge, having so directed himself, needed nonetheless to repeat that direction as a mantra every time he came to a specific issue is quite unreal. And when significant issues in relation to article 10 did arise in a particular instance those issues were addressed by the Judge separately from the general guidance that he had given himself.
Ms Ash's right to tell her own story
The fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party's right to have that confidence respected, but it does undermine that right.
Based on that, the argument then moved to the striking proposition that the Judge should have held that Ms McKennitt's article 8 rights, if any, were to be subordinated to the article 10 rights of Ms Ash.
The public domain
79. Ms Ash produced a number of articles on the basis of which she argued that, at least in certain respects, Ms McKennitt had revealed aspects of her personal life and beliefs to the general public. She chose to confine her submissions to a limited number of articles, partly for reasons of time, although it is reasonable for me to proceed on the basis that she selected the examples which she thought best illustrated her point. If that is so, I did not find the submission very compelling in the light of the material contained in the book. Conversations with, or behaviour in the presence of, close personal friends would appear to me to be significantly different from the sort of material revealed by Ms McKennitt in the past. Also, as I have already pointed out, there is in this context a significant difference between choosing to reveal aspects of private life with which one feels "comfortable" and yielding up to public scrutiny every detail of personal life, feelings, thoughts and foibles of character.
80. In any event, it is important that a large proportion of the material Ms Ash relied upon was specifically revealed by Ms McKennitt in the context of her attempts to promote water safety and to support the Cook-Rees Memorial Fund. A classic example is provided by an interview in May 1999 with the journal Le Lundi. It is somewhat surprising that Ms Ash should think that this carefully measured, and no doubt in itself distressing, exposure of her own feelings in a particular context should give her the right to reveal at considerable length what Mr Browne described as "her pitifully grief-stricken reaction to the death of [her fiancé], his brother and a friend". It goes on for some eight pages. One's reactions and communications to a friend in the immediate aftermath of personal bereavement are surely a classic example of material in respect of which there would a "reasonable expectation" that one's privacy would be respected.
The public interest: and Ms McKennitt as a public figure
63. The Court considers that a fundamental distinction needs to be made between reporting facts-even controversial ones-capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of "watchdog" in a democracy by contributing to imparting information and ideas on matters of public interest it does not do so in the latter case.
64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.
A v B
Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can rightly be expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and legitimate interest in being told the information. If this is the situation then it can appropriately be taken into account by a court in deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information that the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media.
Footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example. While [the trial judge] was right to say on the evidence that was before him that A had not courted publicity, the fact is that someone holding his position was inevitably a figure in whom a section of the public and the media would be interested.
Ms McKennitt, it was said, was inevitably a figure in whom a section of the public would be, and was, interested. Second, the general interest in supporting the "media" in the publication of the sort of material that sells newspapers should extend to biographies and literary works generally, such as the book was claimed to be.
When Lord Woolf spoke of the public having 'an understandable and so a legitimate interest in being told' information, even including trivial facts, about a public figure, he was not speaking of private facts that a fair-minded person would consider it offensive to disclose. That is clear from his subsequent commendation of the guidance on striking a balance between art 8 and art 10 rights provided by the Council of Europe Resolution 1165 of 1998. For our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.
The public only have a right to be told if two conditions are fulfilled. First, there must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information that interests the public-the most vapid tittle-tattle about the activities of footballers' wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it.
It is fortunately not necessary to pursue that issue further, because it is merely a general factor, that cannot be said to have any significant impact on the present case.
simply being used as an excuse by Ms Ash to enable her to escape her obligations of confidence and, in her own phrase, "unqualified loyalty"
And the Judge concluded that in any event Ms McKennitt had not behaved disreputably or insincerely in any way.
The Property Dispute
The privacy claim
All of this would have remained confidential, were it not for the publication of Ms Ash's book. The whole point of a Tomlin order (recording the ultimate settlement figure of £67,500) is that the parties are able to keep the terms of settlement confidential. Furthermore, there was no need for all the correspondence to become public. There would be no public entitlement of access to those documents or indeed even to the parties' statements of case (save for the particulars of claim). There can be little doubt, therefore, that Ms McKennitt had a "reasonable expectation" of privacy in relation to all these matters.
The falsity of the allegations: and herein of defamation
Lord Justice Latham:
Lord Justice Longmore :