Case Law: ZYT v Associated, Tipping the balance, when is it in the public interest to take a look at a “private” relationship? – Kathy May

25 07 2015

Silhouete CoupleThe case of ZYT and another v Associated Newspapers Ltd  ([2015] EWHC 1162 (QB)) was (what is now) a comparatively rare example of an injunction being sought and granted in a privacy claim against a newspaper.

Warby J heard an urgent application on behalf of two claimants who sought a temporary injunction and anonymity order to restrain the Daily Mail (which is owned by the defendant) from publishing information as to the existence and nature of the personal relationship between them.

The claimants had been in a relationship for two years.  The first claimant held a very senior position in an educational institution.  The second claimant was an adult and was associated with the same educational institution.  The claimants contended that there was no lawful basis for disclosure of the nature of their relationship in the newspaper and that they had taken steps to keep the relationship a secret so that its existence was known only to a very small number of people.

The defendant asserted that any privacy and confidentiality attaching to the information was of a low level and that, in any event, in conducting the relationship, the first claimant had breached his position of trust at the educational institution and as a result there was a legitimate public interest in disclosure of the information which outweighed the rights of the claimants to keep the information private and confidential.

In deciding whether to grant the injunction and anonymity order, Warby J applied the following established principles:

  • that, under section 12(3) of the Human Rights Act 1998, an applicant for an injunction must satisfy the court that they are likely to succeed at trial in establishing that the publication should not be allowed (and in this context “likely” means “more likely than not”);
  • that to succeed in a claim for breach of confidence, it has to be shown that the information is confidential in character, the defendant owes a duty of confidence to the claimant in respect of it and the use of the information would be a breach of that duty; and
  • that to succeed in a claim for misuse of private information, a claimant must show that there is a reasonable expectation of privacy in respect of the information. If that is the case, the court will balance the competing rights of the parties (being the rights to privacy and to the free flow of information).

On whether the fact of the relationship was private or confidential, Warby J found in favour of the claimants on the basis that the extent to which the relationship was known about appeared to be very limited.  He also held that, at trial, it was likely that the defendant would be found to have a duty of confidence in relation to this information.

In relation to whether there was evidence to support overriding the claimants’ reasonable expectation of privacy, Warby J stated that he was not satisfied that there were good or reasonable grounds to believe or suspect that the first claimant had engaged in any breach of trust or abuse of his position.  Further, he did not consider it likely that at trial the court would conclude that the facts surrounding the relationship were such that it would be in the public interest to make those facts known for those purposes.

The interim injunction was awarded, along with the anonymity order to protect the parties’ identities.

One important aspect of the case was the focus on whether there was any reasonable expectation of privacy in the mere fact of a personal relationship.  It has long been established that there was such an expectation in the details (at least details of any degree of intimacy) of a relationship.  What was less clear was whether the mere fact of a personal relationship could also be considered private.  Very often, the issue does not arise because the parties have not made efforts to keep the fact private (couples usually to some degree comport themselves in public).  But the judge here, where the fact of the relationship had not become known to any significant degree at all, was prepared to accept that it was subject to a reasonable expectation of privacy.

As far as we are aware, the case was only the third instance of a privacy injunction being obtained against the media in the last two and a half years.

Olswang acted for the claimants on the application.

This post originally appeared on The Injunctions Blog and is reproduced with permission and thanks


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