this type of expression is at the bottom end of the spectrum of importance
(compared, for example, with freedom of political speech or a case of conduct
bearing on the performance of a public office). For present purposes, any public
interest in publishing such criticism must, in the absence of any other, legally
recognised, public interest, be effectively disregarded in any balancing exercise and
is incapable by itself of outweighing such article 8 privacy rights as the appellant
enjoys.
(iii) The distinction between rights of confidence and privacy rights
25.
Mr Desmond Browne QC for the appellant submits the Court of Appeal also
erred by too close an assimilation of a claim based on the tort of invasion of privacy
with breach of confidence. Jackson LJ recognised, correctly, that the former attracts
greater protection than the latter (para 36 of his judgment: see para 17(i) above). But
he went on in para 39 to suggest that, whether a claim for misuse of private
information will survive when information is in the public domain “depends on how
widely known the relevant facts are”. That suggests a quantitative test, measuring
what has already been disclosed with what is yet undisclosed. That is a test which is
not only appropriate but potentially decisive in the context of an application based
on confidentiality, as witnessed famously by Sunday Times v United Kingdom (No
2) (“Spycatcher No 2”) (1991) 14 EHRR 229, paras 54-55. There, the loss of secrecy
by 30 July 1987 was central to the European Court of Human Rights’ conclusion
that injunctions could after that date no longer be justified either as necessary to
ensure a fair trial or to protect national security. The promotion of the efficiency and
reputation of the Security Service constituted insufficient justification.
26.
However, different considerations apply to the present privacy claim. First,
as Mr Browne submits, a quantitative approach overlooks the invasiveness and
distress involved, even in repetition of private material. Second, open hard copy
exposure, as well no doubt as further internet exposure, is likely to add significantly
to the overall intrusiveness and distress involved. I return to the second point in paras
34-37 below. As to the first point, there is substantial recent authority recognising
that even “the repetition of known facts about an individual may amount to
unjustified interference with the private lives not only of that person but also of those
who are involved with him”: JIH v News Group Newspapers Ltd [2010] EWHC
2818 (QB), para 59, per Tugendhat J. The Court of Appeal referred (in para 25) to
the submission which Mr Browne made before it to like effect, and to the supporting
authority which he cited, but did not, Mr Browne submits, give effect to it in its
decision. The point made in JIH is worth elaborating for its resonance on this appeal.
It can be traced back to Attorney General v Guardian Newspapers Ltd (No 2) [1990]
1 AC 109, 260F, where Lord Keith gave examples of circumstances in which a
person could be entitled to restrain disclosure of private information, which had
received widespread publication abroad. It was taken up by Eady J in McKennitt v
Ash [2006] EMLR 178, para 81, by Tugendhat J in Green Corns Ltd v Claverley
Page 16
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