Late on Friday afternoon we are contacted by our clients Cassandra and Quentin Knapworth, both public figures, who have asked us to advise on their legal rights and any potential remedies regarding the publication of a newspaper article on Sunday and a book on Monday from the same publishing house, both written by Jenny Michaels. The article and the book both contain potentially damaging material to the reputation and privacy of the Knapworths, another concern is the manipulation of previously published images of both clients on the cover of the book.
These facts raise the legal issues of breach of confidence, privacy, damage to image and reputation and defamation.. Our first step will be to apply immediately to the court for an interim injunction restraining publication of the article and book. An application for an interim order will need to take account of the guidelines in American Cyanamid Co v Ethicon Ltd 1, we will argue that there is a serious issue to be tried, that damages will not be an adequate remedy, and should the injunction not be granted irrepareable damage will be caused to our client, in which case we will bring a defamatory action for libel.
We will also argue that our client is likely to succeed at trial in line with article 12(3) of the Human Rights Act 1998. The application for prevention of the use on the book jacket of "manipulated images" of our clients will be argued in parallell as it does not constitute an invasion of privacy, given the images were already in the public domain. However this will also form part of our application for an interim injunction as the implied context of the final image will be perceived as a "false endorsement". The leading case in this area is Irvine v Talksport 2 where Laddie J.
recognised that celebrities have a property right to protect their image from the tort of passing-off, he also stated in post-script should it have been necessary to reach the desired result he would have considered application of Article 8, to use the words of Sedley LJ in Douglas v Hello 3 to "give the final impetus" to reach that result. Should the application for an interim injunction fail we will need to consider bringing actions for breach of confidence and libel under the tort of defamation against Jenny Michaels and the publishing house, as the originator of the statement is now deceased.
The book a biography of Austin Myercroft, now deceased, claims he is the real father of our clients. Austin had been a notorious public figure during his life and claimed to have fathered numerous children but would not "name names", it also insinuates a medical condition that they may suffer This is the first issue of our claim, we aim to show that this revelation is a breach of confidence. The House of Lords in Campbell v MGN 4 extended the tort of breach of confidence to protect certain aspects of personal privacy, Lord Nicholls said "the essence of the tort is better encapsulated now as misuse of private information.
" We need also consider any claim in this area must take account of an individuals right to privacy article 8 and freedom of expression article 20 in the ECHR. In order to establish an effective claim we need to prove the three requirements in HRH the Prince of Wales v Associated Newspapers Ltd 5 : a) that there must be confidential information and a relationship of confidence, b) private information in respect of which there was a reasonable expectation of privacy in the light of article 8, c) and each of these must be balanced against article 10.
Taking these requirements in order, we can show that the information contained within the publications reveals intimate details about our clients of their private and family life, in Von Hannover v Germany6 the European Court of Human Rights said: … private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Art. 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his r elations with other human beings.
The presence of information relating to medical records, particularly those of our clients for any proof that Austin is their Father, is an inherently private matter which imports a duty of confidence, a fact that was underlined in Campbell Lord Nicholls said now the law imposes a "duty of confidence" whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential.
The second critera requires a test for the private quality of the information, in Douglas v Hello7 Lord Phillips of Worth Matravers MR said: It seems to us that information will be confidential if it is available to one person (or a group of people) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it should become available to others. 8
and in Browne v Associated Newspapers 9 Eady J made it clear that a reasonable expectation of privacy in the particular circumstances of the case the nature of any relationship between the relevant persons or parties is of considerable potential importance. , in this case the relationship of our clients to Austin could be that of parent and child, an undoubted area of privacy. The final criteria requires the above results to be balanced against article 10, the House of Lords in McKennitt v Ash 10affirmed the principles applied by the original trial judge as:
(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; and (iv) so too, the proportionality test must be applied to each.