'Brake-ing' news: public interest defence is available in breach of confidence and privacy claims, even where the information concerned has been unlawfully obtained
This recent High Court case concerns the accessing and sharing of emails, said to be private and confidential emails (the Emails), by the Defendants.
In 2017, the Second Defendant acquired Axnoller Farm, a celebrity wedding venue owned by the Claimants until their bankruptcy in 2015. The Claimants were subsequently employed by the Third Defendant and occupied a cottage on the Farm. In late 2018, their employment and entitlement to occupy the cottage was terminated following a dispute.
The parties subsequently brought a number of claims against each other. This included an action for misuse of private information and breach of confidence regarding the Defendants' alleged accessing and use of the Emails. The Emails were held in three accounts operated by the Claimants at the time of their dismissal.
The Defendants denied the claims and argued that, even if the factual elements for either of the two claims were present, they would be entitled to rely on the defence that there was a public interest in accessing, retaining and sharing the emails and the data contained in them. This required the Court to consider whether, as a matter of principle, such a defence was available in circumstances where information had been (as was alleged) unlawfully received by the Defendants.
Misuse of private information claims
To comply with the right to respect for private life under Article 8 of the European Convention on Human Rights (the Convention), the courts have developed the law relating to the protection of confidential commercial information to protect the privacy rights of individuals. This has led to the establishment of a tort of misuse of private information.
The Claimants argued that, whilst the public interest defence had been available to defend a breach of privacy claim before the Convention was incorporated into English law, that defence could no longer be sustained and that the only defences now available were those provided for in Article 8 or elsewhere in the Convention (such as the right to freedom of expression under Article 10).
The judge rejected these arguments (and others), holding that:
- Articles 8 and 10 were wide enough to cover the parameters of the public interest defence in relation to claims for breach of confidence;
- it was formalistic to worry about whether there was such a defence under that name in relation to claims for misuse of private information or whether, strictly speaking, it was only the terms of Articles 8 or 10 (or some other Convention article) that could provide a defence;
- the real point was that the same facts being proved would potentially serve as a defence in both kinds of claim;
- it was incorrect that allowing the public interest defence would be unlawful under Article 8, because it did not fulfil the requirement of foreseeability set out in Copland v United Kingdom (2007) 45 EHRR 37 (which held that the law must be sufficiently clear to give individuals an adequate indication as to the circumstances in which it will be applied); and
- various cases relied on by the Claimants to support their assertion that there was no public interest defence to Article 8 claims did not establish that proposition, since none of them turned on that point.
Breach of confidence claims
The Claimants also argued that the public interest defence was only available in relation to a claim for breach of confidence if the information had been lawfully received by the defendant. However, the judge held that there was no basis to support any distinction between lawful and unlawful acquisitions of confidential information.
The decision confirms that the public interest defence is available in relation to the relatively newly recognised – and still very much developing – tort of misuse of private information. It also confirms that the defence is available, regardless of the manner in which the information was obtained (in particular, its lawfulness).The full judgment of Brake and another v Guy and others  EWHC 670 (Ch) is available here.