The Beckhams: A Legal landmark?

Abbie
Gibson worked as the Beckhams’ nanny for two years, until last March.
She had apparently signed four confidentiality agreements.

Nevertheless,
she told the News of the World about David Beckham’s affairs and the
family rows. The Beckhams applied for an injunction against the NoW.
They couldn’t proceed against Gibson as she was not available or
represented.

To obtain an injunction to prevent disclosure of
private material the Beckhams needed to show that it was more likely
than not that they would succeed at trial. Mr Justice Langley thought
not – Article 10 of the European Convention on Human Rights, which
deals with freedom of expression, would prevail.

The David
Beckham brand – worth around £15million a year – depended on his
“clean-living family man” image. But if Abbie Gibson was right, that
was not the truth: he was rowing with his wife and texting various
women. It was in the public interest that this hypocrisy should be
disclosed. Moreover, much of the information was in the public domain.
So the NoW was free to publish.

Whether this is a landmark
remains to be seen. It does, however, demonstrate the sharp contrast
between the pre- and post-Human Rights Act (HRA) world. Under the old
breach of confidence regime, the Beckhams could have shown that the NoW
came under a duty of confidence to them as they knew the nanny was
breaching her contractual duty to the Beckhams, and that disclosure
would be to their detriment.

Whether the disclosure was in the
public interest could have been argued, but the approach would have
been to keep the cat in the bag – they would not have needed to show at
such an early stage that it was likely that they would ultimately
succeed.

Now a newspaper’s Article 10 rights to freedom of
expression and public interest considerations are treated as being
equally important as an individual’s Article 8 right to privacy.

To
curtail the Article 10 right under the HRA, a claimant must be able to
show that his rights are likely to prevail. Mr Justice Langley’s
decision confirms that Article 10 will be allowed to prevail over a
contract willingly signed by the parties and for which the informant
received good consideration. Contractual obligations don’t add weight
to the Article 8 side of the scales.

The Beckhams then applied to
injunct Abbie Gibson. Mr Justice Eady refused to prevent disclosure of
material already in the public domain (even though her contract covered
this). Gibson had already undertaken not to disclose new material. This
decision could clarify an issue that is puzzling media lawyers: should
the law of privacy or defamation apply to disclosure of inaccurate
facts? It is thought the privacy laws could apply if the information
was private in nature and the inaccuracies were presented as truth.

Newspapers
should still be wary of publishing disclosures made in breach of an
employee’s contract. While the Beckhams’ lives may have been regarded
as being of public interest during a Saturday night telephone
application, another judge may view it differently – as with the Blairs
and their nanny.

Maddie Mogford is a partner in the Media and Technology department of City law firm Reynolds Porter Chamberlain

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