Disclosure of documents in privacy litigation
What documents is a claimant entitled to demand from a media defendant in a privacy case?
Last week Eady J rejected a disclosure application against the Sunday Mirror by the footballer Rio Ferdinand, who is suing the paper for misuse of private information following publication of a kiss and tell story about his relationship with a woman. The case is of some interest since there is little authority on the scope of disclosure in article 8 cases.
Ferdinand sought, among other things, documents (including but not limited to e-mails, handwritten notes, memos, agendas and tape recordings) 'relating to or concerning any views or discussions as to whether the publication of the information relating to the Claimant’s private life contained in the article was either lawful or in the public interest'. He argued he was entitled to see such documents because it was relevant to the court's assessment of the newspaper's public interest defence to examine the newspaper's own deliberations on the matter. (Ferdinand's lawyers were, presumably, hoping to show either that the paper hadn't actively considered the public interest or, if it had, that its consideration was in some way deficient.)
This was firmly rejected by the judge, who confirmed that the issue of public interest was a matter to be judged objectively. The newspaper's own assessment of the public interest was not, therefore, a relevant factor.
The documents were also irrelevant to damages: if Ferdinand sought aggravated damages on the ground that the newspaper had caused him additional distress by publishing a story without any public interest "cover", he was free to do so without needing documentary evidence from the newspaper.
Ferdinand also sought disclosure of documents relating to the newspaper's "decision not to seek [his] consent to publication and/or warn him prior to publishing the information". An order for disclosure was refused by the judge: the lack of notice was not in issue and if the claimant wished to say that he found it distressing not to have been given notice, he was able to do so without needing disclosure from the newspaper.
Finally, Ferdinand sought disclosure of documents concerning any payment made to the source of the story. As it happens, the newspaper had already disclosed such documentation without admitting that it was obliged to do so. Eady J was not therefore required to make any order. He did, however, make some observations. He said there was no necessary inconsistency between payment to a source and a public interest argument. However, the question of payment might be relevant to the balancing exercise because the court "may attach less value to the exercise of free speech in a case where it is sought to be exercised, or was exercised, for financial or commercial reasons as opposed to reasons of a more lofty nature, such as the public interest." The judge also suggested payment might be relevant in the context of aggravated damages "because a claimant may say: "I felt additional distress at the fact that a person with whom I formerly had a relationship has chosen to sell intimate details about that relationship to a media outlet for money", in other words for a kiss and tell purpose."
(Rio Ferdinand v MGN Limited  EWHC 1719 (QB), 28 June 2011)
See further chapter 3 of The Privacy Law Handbook