Legal pitfalls of the private lives of public figures

Speculation this week that Carole Caplin, lifestyle guru to Cherie Blair, was to do a book or newspaper deal about life with the Blairs prompted a statement from her solicitor that she had no intention of writing on the subject or otherwise disclosing confidential information.

What legal pitfalls should newspapers be aware of were Caplin to change her mind and approach them with the inside track on the Blairs? Caplin has apparently signed a confidentiality agreement with the Blairs so they could almost certainly obtain an injunction and damages in contract and in confidence against her. A newspaper, however, could not escape the legal net. If the Blairs learnt about the plan to publish in advance, they would apply for an injunction under the law of confidence, bolstered by their Article 8 rights to privacy under the Human Rights Act.

Provided they could satisfy three elements: that the information has the quality of confidence about it (ie, is not already in the public domain), has been communicated in circumstances which give rise to an obligation of confidence and that there is a threat that it will be disclosed against their wishes and interest, they would almost certainly be successful.

However, in the case of information of genuine public interest, case law suggests the court would be reluctant to inhibit the journalist’s right to freedom of expression protected by Article 10 of the Human Rights Act. In Naomi Campbell’s case against the Daily Mirror the court held that what was published was justified in order to provide a factual account of her drug addiction that had the detail necessary to carry credibility.

Similarly, since he had placed aspects of his private life in the public domain and courted publicity, Jamie Theakston failed in his attempt to prevent details of his visit to a brothel being published. The court said there was “a real public interest” in the article being published given that Theakston was projected, as a BBC presenter of programmes such as Top of the Pops, as a suitable person to present programmes to young people. There is no suggestion, however, that Caplin has any information of genuine public interest to divulge about the Blairs.

The Blairs have previously acted to protect their private family life.

When their former nanny Rosalyn Mark wrote a book in breach of her confidentiality agreement, they obtained an injunction preventing material from the book being published in TheMail on Sunday. This must act as a major disincentive to any newspaper hoping to change Caplin’s mind about her vow of silence.

Catherine Hurst is an associate at Addleshaw Goddard

by Catherine Hurst

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