Factual and Procedural Background
This case concerns claims for misuse of private information and copyright infringement arising from a book published by the Defendant about her relationship with the Plaintiff. The Plaintiff and his then wife won approximately 41 million on the National Lottery in 2012, a fact widely publicised. The Plaintiff separated from his wife around 2016. The Plaintiff and Defendant met in Tenerife in late 2016 and began a sexual relationship that lasted into 2017. Following the breakdown of this relationship, the Defendant wrote and published a book entitled Google Me No Lies in November 2017, containing private information about the Plaintiff and including four photographs said to be copyrighted by the Plaintiff.
The Plaintiff sought an interim non-disclosure order (INDO) in December 2017 restraining publication of the private information. The Plaintiff now seeks a permanent injunction preventing publication of the private information and photographs, damages, and other relief. The Defendant defends the claims on grounds including denial of a reasonable expectation of privacy, consent, public interest, and ownership or permission to use the photographs. The copyright claim was started in the Queen’s Bench Division despite rules suggesting it should be started elsewhere; the court confirmed jurisdiction to hear the claim.
Legal Issues Presented
- Whether the Plaintiff had a reasonable expectation of privacy in relation to the private information published in the Defendant’s book.
- Whether the Defendant’s right to freedom of expression under Article 10 of the European Convention on Human Rights outweighs the Plaintiff’s right to privacy under Article 8.
- Whether the Plaintiff consented to the publication of the private information or whether it had entered the public domain.
- Whether the Defendant infringed the Plaintiff’s copyright in the photographs included in the book.
- Whether damages and permanent injunctions should be granted in respect of the misuse of private information and copyright infringement claims.
Arguments of the Parties
Appellant's Arguments (Plaintiff)
- The 36 passages in the book contain private information about his sexual relationship with the Defendant, his divorce, his children, and his physical health, all of which he had a reasonable expectation of privacy in.
- The Defendant did not have his consent to publish the private information or the photographs.
- The private information had not entered the public domain prior to publication of the book.
- Publication of the information has caused serious distress and harm to him and his family.
- Damages should be awarded for distress and injury to feelings, as well as aggravated damages due to breaches of the interim non-disclosure order by the Defendant.
- A permanent injunction is necessary to prevent further publication and harm, as damages alone would be inadequate.
- The Defendant infringed his copyright in the photographs by including them in the book without permission.
Appellee's Arguments (Defendant)
- Denies that the Plaintiff had a reasonable expectation of privacy in relation to the information published.
- Argues that the Plaintiff consented to publication or acquiesced by delay and failure to act promptly.
- Claims the information was already in the public domain due to prior media coverage.
- Asserts a public interest in publishing the information to “set the record straight” and rebut alleged defamatory statements made by the Plaintiff about her.
- Claims express or implied permission to use the photographs or denies Plaintiff’s ownership of the copyright.
- Challenges the jurisdiction of the court to hear the copyright claim.
- Contends that the Plaintiff’s delay and conduct should bar injunction relief.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McKennitt v Ash [2008] QB 73 |
Two-stage test for misuse of private information: (1) whether information is private, (2) balancing Article 8 privacy rights against Article 10 freedom of expression rights. |
Applied to determine if the Plaintiff’s private information was protected and if the Defendant’s expression rights outweighed privacy rights. |
| Murray v Express Newspapers Ltd [2009] Ch 481 |
Reasonable expectation of privacy is an objective question considering all circumstances. |
Used to assess whether the Plaintiff had a reasonable expectation of privacy in the information published. |
| PJS v News Group Newspapers [2016] AC 1081 |
Balancing exercise between privacy and freedom of expression; public interest considerations; injunctions can be granted despite some public knowledge. |
Guided the court’s balancing of rights and rejection of public domain argument due to limited dissemination. |
| Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) |
Sexual activity is highly private and protected by Article 8; publication of intimate sexual details generally lacks public interest. |
Supported the conclusion that the Plaintiff’s sexual relationship details were private and entitled to protection. |
| Couderc v France [2016] EMLR 19 |
Public interest does not extend to satisfying curiosity about private lives; privacy rights are robust even for public figures. |
Reinforced that the Defendant’s “kiss and tell” publication did not meet a legally recognised public interest. |
| Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 & Denton v TH White Ltd [2014] 1 WLR 3926 |
Principles governing relief from sanctions for procedural defaults. |
Applied to refuse Defendant’s application to call witnesses without proper disclosure. |
| Leary v British Broadcasting Corporation (Unreported, 1989) |
Pre-action disclosure unlikely to succeed absent strong grounds. |
Supported Plaintiff’s decision not to seek pre-publication disclosure of manuscript. |
| Gulati and others v Mirror Group Newspapers [2016] FSR 12 |
Assessment of damages for misuse of private information, including aggravated damages for defendant’s conduct. |
Guided the award of damages and aggravated damages to the Plaintiff. |
| Broome v Cassell (No 1) [1972] AC 1072 |
Aggravated damages may be awarded for defendant’s high-handed, malicious or oppressive conduct. |
Supported awarding aggravated damages due to Defendant’s breach of injunction and misleading conduct. |
| Commissioner of Police for the Metropolis v Shaw [2012] ICR 464 |
Clarified nature and purpose of aggravated damages. |
Informed the court’s approach to aggravated damages assessment. |
| Pablo Star Media Limited v Richard Bowen [2017] EWHC 2541 (IPEC) |
Modest damages awarded for unauthorised use of photographs on user principle. |
Informed the assessment of damages for copyright infringement in this case. |
| Z v Finland (1998) 25 EHRR 371 |
Privacy of health information is fundamental under Article 8. |
Supported finding that Plaintiff’s health information was private and protected. |
Court's Reasoning and Analysis
The court first identified the four categories of private information published in the book: details of the sexual relationship, the Plaintiff’s divorce and former wife, the Plaintiff’s children, and the Plaintiff’s physical health. It found that all these categories attract a reasonable expectation of privacy under Article 8, referencing established case law that sexual activity, family life, and health information are highly protected.
The court rejected the Defendant’s argument that the Plaintiff consented to publication, holding that consent must be informed and specific, which was not the case here. The Defendant’s representations that the book contained only a little about the Plaintiff and that the information was already public were found to be misleading. The court also rejected the public domain defence, finding that the prior media coverage did not disclose the intimate details complained of.
In balancing the Plaintiff’s privacy rights against the Defendant’s freedom of expression rights under Article 10, the court emphasised that sexual and intimate private information ranks highly in privacy protection and that “kiss and tell” stories satisfying mere curiosity do not constitute a legally recognised public interest. The Defendant’s asserted public interest in “setting the record straight” was found to be factually unsupported and legally insufficient.
The court found that the publication caused serious distress and harm to the Plaintiff and his children, and that damages alone would be inadequate to remedy ongoing harm. It therefore concluded that a permanent injunction restraining publication of the private information was justified.
Regarding copyright infringement, the court accepted the Plaintiff’s evidence that he took and privately sent the photographs to the Defendant without permission to publish. The Defendant’s claim of implied permission or alternative ownership was rejected. The court awarded modest damages for the unauthorised use of the photographs but adjourned the question of injunction on the basis that the Defendant was willing to withdraw the photographs from future editions.
The court also addressed procedural issues, confirming jurisdiction to hear the copyright claim in the Queen’s Bench Division and refusing the Defendant’s application to call witnesses without proper disclosure, applying the Mitchell/Denton principles.
Holding and Implications
The court held in favour of the Plaintiff.
The claims for misuse of private information and copyright infringement succeeded. The court granted a permanent injunction restraining publication of the private information contained in the book, finding that damages alone would be inadequate to protect the Plaintiff’s Article 8 rights. It awarded damages of £10,000 for misuse of private information plus £2,500 in aggravated damages due to the Defendant’s breaches of the interim injunction and misleading conduct. For copyright infringement, damages were assessed at £50 and the court invited the parties to agree undertakings to avoid the need for an injunction concerning the photographs.
The Defendant’s defences based on consent, public domain, and public interest failed. The court emphasised that intimate private information, especially relating to sexual activity and family matters, commands strong protection under Article 8, and mere “kiss and tell” publications satisfying curiosity do not justify infringement of privacy rights.
The ruling directly affects the parties by limiting the Defendant’s ability to publish the identified private information and photographs, but does not establish new legal precedents beyond reaffirming established principles in misuse of private information and copyright law.