The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and disclosures had been confidential. The defendants appealed against a refusal to strike out the claim.
Held: The defendants had published knowing that the material was disclosed in confidence. Though gross sexual immorality might not be protected from disclosure, information about sexual activites could be protected under a legally enforceable duty of confidence, where it would be unconscionable for someone who had received information on an expressly confidential basis to disclose it. It was up to the defendants to show that there had been no basis in law for the claim. They had failed to do so. However, the fact that all the conditions for relief have been established does not mean, in the case of a remedy in equity, that relief will automatically follow. The court has an equitable jurisdiction to restrain a breach of confidence independently of any right at law, and this is capable of protecting relationships outside that of husband of wife, though possibly only where the confidence was express.
The fact that information may be known to a limited number of members of the public does not of itself prevent it having and retaining the character of confidentiality: ‘Information only ceases to be capable of protection as confidential when it is in fact known to a substantial number of people.’
Browne-Wilkinson V-C J said as to the case of Glyn v Weston Feature Film Co: ‘I entirely accept the principle stated in that case, the principle being that a court of equity will not enforce copyright, and presumably also will not enforce a duty of confidence, relating to matters which have a grossly immoral tendency. But at the present day the difficulty is to identify what sexual conduct is to be treated as grossly immoral. In 1915 there was a code of sexual morals accepted by the overwhelming majority of society. A judge could therefore stigmatize certain sexual conduct as offending that moral code. But at the present day no such general code exists. There is no common view that sexual conduct of any kind between consenting adults is grossly immoral . . If it is right that there is now no generally accepted code of sexual morality applying to this case, it would be quite wrong in my judgment for any judge to apply his own personal moral views, however strongly held, in deciding the legal rights of the parties. The court’s function is to apply the law, not personal prejudice. Only in a case where there is still a generally accepted moral code can the court refuse to enforce rights in such a way as to offend that generally accepted code.’
Judges:
Sir Nicholas Browne-Wilkinson V-C
Citations:
[1988] 2 WLR 1280, [1988] I Ch 449, [1988] 2 All ER 477, [1988] Ch 449, [1988] FSR 510, (1988) 11 IPR 439
Jurisdiction:
England and Wales
Citing:
Cited – Glyn v Weston Feature Film Co 1916
Relief for copyright infringement was refused where the nature of the work tended to gross immorality. Younger J said that it was: ‘clear law that copyright cannot exist in a work of a tendency so grossly immoral as this, a work which apart from its . .
Cited by:
Cited – Attorney-General v Greater Manchester Newspapers Ltd QBD 4-Dec-2001
The defendant newspaper had published facts relating to the whereabouts of two youths protected by injunction against the publication of any information likely to lead to their location. The injunction was not ambiguous or unclear. ‘Likely’ did not . .
Cited – Douglas etc v Hello! Ltd etc ChD 11-Apr-2003
The claimants were to be married. They sold the rights to publish photographs of their wedding, but various of the defendants took and published unauthorised pictures.
Held: The claimants had gone to lengths to ensure the commercial value of . .
Cited – Okta Crude Oil Refinery A D v Mamidoil-Jetoil Greek Petroleum Company S A and Another CA 17-Jul-2003
The parties had contracted to allow an exclusive right to deliver oil by tanker and to sell into Macedonia. The defendants claimed they were overborn, and claimed exemption under a force majeure clause.
Held: The acts which had made the . .
Cited – Okta Crude Oil Refinery A D v Mamidoil-Jetoil Greek Petroleum Company S A and Another CA 17-Jul-2003
The parties had contracted to allow an exclusive right to deliver oil by tanker and to sell into Macedonia. The defendants claimed they were overborn, and claimed exemption under a force majeure clause.
Held: The acts which had made the . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – AMM v HXW QBD 7-Oct-2010
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – Barrymore v News Group Newspapers Limited ChD 1997
The newspaper defendant sought to publish information about features of an intimate homosexual relationship. The plaintiff sought to prevent it.
Held: The injunction was granted.
Jacob J said: ‘The fact is that when people kiss and later . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Lists of cited by and citing cases may be incomplete.
Equity, Intellectual Property
Updated: 23 July 2022; Ref: scu.181410