Privacy, Confidence and Press Freedom: A Study in Judicial Activism

Date01 January 1990
Published date01 January 1990
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb01790.x
Privacy, Confidence and Press Freedom: A Study in
Judicial Activism
William Wilson”
Introduction
One interesting and as yet unremarked feature of the House of Lords’ decision in
A-G
v
Guardian Newspapers Ltd (No
2)
I
is the unexpected support it lends to
a
case which
passed relatively unnoticed earlier in the year and yet which signalled a development more
significant for press freedom than even Spycatcher itself. It now appears that a substantial
shift in the balance between privacy and press freedom is in prospect. Such a shift may
well be beneficial in curbing the excesses of ‘exposure journalism’ in the tabloid newspapers.
However the extended judicial role of policing the boundaries between the private and
public interest made necessary by this shift may appear decidedly sinister to some. The
development is also important on quite another level. It affords us a fascinating glimpse
of how doctrine is ‘constructed’ rather than simply developing organically to meet novel
circumstances. It provides another example of how the mechanical neutrality of precedent
can mask the most dramatic doctrinal changes. It presents
us
with the topical problem
of the nature of legal obligations and how they may be differentiated from moral obligations,
and raises the question whether the decision has blurred unacceptably the dividing line
between the two.
The case is
Stephens
v
Avery,z
and the facts were as follows: The third defendants,
a Sunday newspaper, published information disclosed by the plaintiff to Mrs Avery
,
the
first defendant which related to a lesbian relationship between the plaintiff and a Mrs Telling.
The background facts were that Mrs Telling was unlawfully killed by her husband apparently
as a result of finding her and the plaintiff together in a compromising position. This
information had been imparted by the plaintiff to the first defendant, allegedly in confidence.
The plaintiff alleged further that, in breach of that confidence, the information was given
to a newspaper journalist who worked for the third defendants. The plaintiff claimed damages
for breach of confidence, alleging that the second and third defendants had published the
information knowing that it was imparted to the first defendant in confidence and that
the plaintiff had not authorised publication. The defendants applied to strike out the statement
of claim on the ground that it disclosed no cause of action. Master Barratt refused the
defendants’ application. On appeal to the Vice-Chancellor, counsel for the defendants
submitted, inter alia, that the law does not protect information relating to the sexual conduct
or proclivities of an individual save to the extent that such conduct takes place between
married parties. He submitted further that the circumstances of the communication were
not such as to raise a duty of confidence, in that it was necessary to establish either a
legally enforceable contract or a pre-existing relationship (e.g. marriage) for such an
obligation to arise.
In response to these submissions the Vice-Chancellor addressed himself to the principle
established by the Court of Appeal in
Saltman,
summarised by Megarry
J.
in
COCO
v
A.N.
Clark (Engineers) Ltd.3
*School of Law, Kingston Polytechnic.
Thanks are due
to
the Vice-Chancellor, Sir Nicolas Browne-Wilkinson, for his comments
on
an earlier draft
of this article. Thanks are also due to Robin Crockett, Roger Holmes, Mary Holmes and Vera Sacks for their
helpful comments and criticisms.
1
2
3 [1969]
RPC
41.
A-G
v
Guardian Newspapers Ltd (No
2)
[1988]
2
All
ER
545,
638.
Stephens
v
Avery
[1988]
2
All
ER
477.
The Modem Law Review
53:l
January
1990 0026-7961
43

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