Public or Private

Doesn’t
information stop being private once it is in the public domain? Not
necessarily, said Mr Justice Tugendhat in Green Corns Ltd v Claverley
& Express & Star [2005] EWHC 958, it depends on what exactly
the private information is and where it has been published before.

The
judge made the comments when allowing an application for an injunction
against the Wolverhampton newspaper to restrain it from publishing the
addresses of houses where it was intended that specialist care services
would be provided to troubled children.

The basic rule was set
out by Lord Goff in Spycatcher: “Once [the information] has entered
into what is usually called the public domain (which means no more than
that the information in question is so accessible that, in all the
circumstances, it cannot be regarded as confidential) then, as a
general rule, the principle of confidentiality can have no application
to it.” In Green Corns, Justice Tugendhat said: “There will be cases
where personal information about a person (usually a celebrity) has
been so widely published that a restraint upon repetition will serve no
purpose, and an injunction will be refused on that account. But in any
event it is not possible in a case about personal information simply to
apply Lord Goff’s test of whether the information is generally
accessible, and to conclude that, if it is, then that is the end to the
matter.”

The security secrets disclosed in Spycatcher were
non-personal information of the sort that, once disclosed, there was
little point in trying to limit publication of it. In Green Corns,
Justice Tugendhat drew the distinction between that sort of information
and sensitive personal information, such as marital secrets. He
recalled the words of Eady J in WE v H Bauer Publishing in 2002 where
he had said: “It may be more difficult to establish that
confidentiality has gone for all purposes, in the context of personal
information, by virtue of its having come to the attention of certain
readers or categories of readers.”

What does this actually mean
for publishers? When presented with photographs (like the ones this
week of Jude Law nude on holiday in France) or other information that
ostensibly appears private, even if it has been published before,
editors will have to consider whether, if they publish the information
themselves, they will be bringing it to the attention of a new section
of the public.

Investigations will be needed into precisely where
the images or information has been published before. Consideration will
be needed as to who the recipients of that information have been. If
publication has only ever been on the internet, for example, and only
on websites aimed at a foreign readership, even though the information
is accessible from the UK if publication is likely to bring the
information to a whole new group of people (such as those who perhaps
do not have access to the internet or do not read magazines or even
regional newspapers) caution will need to be exercised.

Anna Doble is a litigation lawyer with specialist media firm Wiggin & Co LLP

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