The Court of Appeal judgment of 22 January 2016 14. The Court of Appeal in its judgment of 22 January 2016 held that there were “two significant shortcomings” in the judge’s approach, which enabled (or required) it to re-open the matter: (i) although the judge had correctly identified the children’s article 8 privacy rights, he had not explained how he had taken them into account; (ii) once it was accepted that “commitment may not entail monogamy”, there was no false image to require correction by disclosure of the appellant’s occasional sexual encounters with others. In this connection, the Court of Appeal concluded positively that on the evidence before it the image presented by the appellant and his partner had been one of commitment not monogamy. 15. The Court of Appeal went on to identify the well-established principle that “kiss and tell” stories which do no more than satisfy readers’ curiosity about the private lives of other persons, however well-known to the public, do not serve any legally recognised public interest: see eg Couderc and Hachette Filipacchi Associés v France (Application No 41454/07), paras 100-101 and Axel Springer AG v Germany (Application No 39954/08), para 91. The Supreme Court will revert to this principle in paras 22-25 below. 16. There was a respondents’ notice alleging additional grounds for upholding the judge’s decision. In this connection, the Court of Appeal agreed with the judge that the proposed publication did not go to any matter of public debate: para 12(iii) above. Referring to Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808, which itself refers back to Terry v Persons Unknown [2010] EWHC 119 (QB), the Court accepted that the respondents were entitled to publish articles critical of people in the public eye, even though there was nothing illegal about their conduct. But it noted that the appellant had an expectation that his sexual encounters would remain private, that the proposed story would, if published, be “devastating” for him and that on any proper balancing his article 8 right to privacy must prevail over the respondents’ article 10 right to publish an account of the adultery. It added that the position of the children was also a factor to consider: the proposed article would generate a media storm and much public interest in the appellant’s family, including increased press attention to the children, meaning that the children would in due course learn about the relevant matters from school friends and the internet. On the evidence before the Court, the appellant was likely to establish at trial that publication should not be allowed, and had therefore satisfied the test in section Page 8