A "tenuous claim to privacy": Hutcheson v News Group
Can you expect to keep a second family private? That was the ambitious hope of celebrity chef Gordon Ramsay's father-in-law, Chris Hutcheson.
Mr Hutcheson got married in 1968. He and his wife had four children, all now grown up. He remains married to his wife, but in the meantime, since about 1976, he had been conducting a relationship with another woman by whom he had two children, born in 1979 and 1981. For many years he managed to keep the existence of his second family secret from his first family, but by the time he went to court against the press last year they had become aware of his other family, though he had managed to keep the secret from at least one of the children of his first marriage for over 30 years.
The Sun got hold of the story, which was interesting to it not just because of Mr Hutcheson's connection to Gordon Ramsay, but because Mr Hutcheson had also been chief executive of the company that ran Mr Ramsay's restaurants and other business interests. Mr Hutcheson had recently been sacked as chief executive and it appeared that this might have had something to do with the cost of running his second family (Mr Hutcheson has denied any impropriety). A public slanging match ensued between Mr Hutcheson and Mr Ramsay, but although the existence of Mr Hutcheson's second family was hinted at, it was not expressly deployed by Mr Ramsay in statements to the media.
The application for an injunction
Mr Hutcheson applied for an injunction to prevent the Sun from publishing the fact that he had a second family. He argued that the existence of his second family was not public knowledge and he had a reasonable expectation of privacy in that information despite it now being known to his first family. The Sun argued that he had no such expectation and in any event he had put a large quantity of private family matters into the public domain and it would be unfair to allow his version of events to stand without permitting a full account of those family matters to be published.
The evidence before the court was that Mr Hutcheson had 'played a full part' in the upbringing of his children of the second family; they had taken his name (as indeed had their mother); but the relationship had otherwise been conducted in private such that people generally did not know that Mr Hutcheson had two families.
Mr Hutcheson gave evidence that publicity would have an adverse impact on the members of his two families, but they did not themselves provide any evidence. Hutcheson said he was not unduly concerned about the effect of publicity on himself personally.
Eady J was not persuaded that Mr Hutcheson had a reasonable expectation of keeping his second family secret:
I would accept that Article 8 is certainly engaged so far as concerns the Claimant and the members of both his families. Yet there is no question of intruding, by any proposed publication, into intimate matters internal to the “second” family or to the Claimant’s extra-marital relationship. It is a “bare fact” case; that is to say, the court is concerned only with the bare fact of the familial relationship (as was the case, for example, in Donald v Ntuli). Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy as to the fact of the “second family”.
In case he was wrong about that, however, Eady J proceeded to the second stage test by examining the public interest considerations. First, he noted that Mr Hutcheson was not, in his view, a public figure: he was an "ordinary private citizen". There was no inherent public interest in the fact that such a person had a second family. Nor could it be said that because he had talked publicly about certain aspects of his family life, he had thereby exposed his whole private life: the "zonal" argument had been discredited in McKennit v Ash and subsequently.
On the other hand, Eady J held that there was a potential public interest in exposing wrongdoing, including possible misappropriation of corporate funds, and there was also a public interest in ensuring that the public was not misled by the statements of someone involved in a matter that has come to the public's attention. It would also be wrong for Mr Hutcheson to use the law of privacy to prevent a party to a dispute from bringing to the attention of the public certain details of the dispute because they might be unflattering to him. If Mr Hutcheson were to be defamed, he would have the right to sue for libel. Having regard to those considerations, the judge declined to grant an injunction.
Mr Hutcheson appealed to the Court of Appeal. On 25 May 2011 the Court of Appeal dismissed the appeal and said its reasons would follow later. A number of papers published stories about the case: see here for coverage in the Daily Telegraph, Daily Mail and Sun.
Last week the Court of Appeal provided its reasons for dismissing the appeal and upholding Eady J's refusal of an injunction. The court declined to decide whether Mr Hutcheson had a reasonable expectation of privacy in the fact of his second family's existence. It was instead content to proceed to the second stage on the assumption that the information was protected.
On the second stage test, the court held that the balance was against granting an injunction. First, there was a very real risk of a distorted and partial picture of the dispute between Mr Hutcheson and Mr Ramsay being presented to the public if the fact of Mr Hutcheson's second family could not be mentioned. Second, and subject to the law of defamation, there was a clear public interest in the Sun being free to publish the fact of Mr Hutcheson's second family in order to authenticate the allegation of diversion of corporate funds for private purposes.
Without actually deciding that Mr Hutcheson had a reasonable expectation of privacy (it being unnecessary to do so because of its decision on the balancing exercise), the Court of Appeal expressed the view that Mr Hutcheson's claim was "borderline". In that regard:
(a) Mr Hutcheson had effectively discounted his own claim to privacy: the claim essentially turned on the impact of publication on his two families.
(b) It was noteworthy that there was no evidence from those family members and if they had claims to protection, they should have spoken for themselves.
(c) It was no longer open to Mr Hutcheson to claim privacy on the ground that his first family did not know about the second family. (Implicitly, his claim would have been stronger if his first family had remained in ignorance.)
(d) There was a 'public dimension' to Mr Hutcheson's second family and that was a factor to be weighed in the balance.
In summary, Gross LJ considered that the case involved "a strong claim to freedom of expression of expression in the public interest, against which there was, in the balance and, at best, a tenuous claim to privacy".
The Court of Appeal's analysis of the "legal framework" of privacy protection, which covers paras  to  of the judgment, is required reading. The following points are worth highlighting:
(i) In considering the notion of 'personal autonomy' protected by Article 8, the court adopted the statement of principle by Laws LJ in Wood v Metropolitan Police (at ):
This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's personal autonomy must (if article 8 is to be engaged) attain 'a certain level of seriousness'. Secondly, the touchstone for article 8(1)'s engagement is whether the claimant enjoys on the facts a 'reasonable expectation of privacy' …….Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2)…… "
The court placed particular emphasis on Laws LJ's statement that the Article 8 right "should not be read so widely that its claims become unreal and unreasonable" and noted that "there is no question of Art. 8 furnishing an absolute right to privacy".
(ii) The fact that private information has become known to some people or even a section of the public does not of itself preclude a claim for an injunction to prevent it becoming known to the public at large.
(iii) A complaint of misuse of private information is necessarily fact sensitive. The fact that Article 8 is "engaged" (i.e. it applies to the situation in question) does not mean without more that there has been a breach of Article 8. In other words, there is a two stage process - first, is Art 8 engaged? If so, you move to the second question of whether it has been breached. The issue of reasonable expectation of privacy is not therefore answered simply by asking the question of whether the claimant's Art 8 right is engaged.
(iv) In assessing reasonable expectation, the nature of the information is crucial. There may be privacy in the details of a sexual relationship but not necessarily in the fact that it exists.
(v) Evidence as to the Article 8 rights of those said to be affected will be required. The court noted Tugendhat J's statement in Terry that "respect for the dignity and autonomy of the individuals concerned requires that, if practicable, they should speak for themselves."
(vi) The court also noted with apparent approval Tugendhat J's rejection in Terry of Terry's counsel's submission that a newspaper should not be permitted to criticise a person's private conduct unless it happens to be unlawful. Tugendhat J had noted that "the freedom to criticise (within the limits of the law) the conduct of other members of society as being harmful or wrong" is a valuable freedom (just as personal autonomy is) and it was "as a result of public discussion and debate that public opinion develops".
(vii) Significantly, the court noted the importance of the general principle of press freedom (including the press's ability to conduct its business commercially) to the way in which the law of privacy is applied:
To some, applicants in privacy cases may seem unattractive. However, to others, intrusive media coverage of matters of sexual conduct, particularly if it includes salacious detail, may be equally unattractive. That said, for sections of the media, developments in privacy law impinging on their ability to publish such matters, may not only give rise to issues of principle as to freedom of expression in the individual case but also to real commercial concerns - which, at least to the extent of the general public interest in having a thriving and vigorous newspaper industry, representing all legitimate opinions, may also be argued to give rise to a relevant factor for the court to take into account.
There is a case summary and comment by Rosalind English on the UK Human Rights Blog. Ms English notes, among other things, that the case suggests that "a claim to privacy is weakened, not only by the celebrity status of the person seeking privacy, but by any action they may take which involves publicity of some sort or another" (emphasis added).
See further chapter 3 of The Privacy Law Handbook