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The death knell for ‘kiss and tell’?

In a recent privacy claim involving a ‘kiss and tell’ publication, the Claimant was a former lottery winner. He and his then wife won £41 million on the ‘Euromillions’ Lottery in 2012 and their win was surrounded by extensive publicity. In 2016 the Claimant started a sexual relationship with the Defendant whom he met in Tenerife. Their relationship broke down the following year and she wrote and published a book about their relationship entitled “Google Me No Lies”.

The Claimant alleged that the book contained private information about him and his family including details of his sexual relationship with the Defendant, his relationship with and divorce from his former wife, his children and his health. The book also included four photographs taken by the Claimant and sent to the Defendant privately by Facebook Messenger during their relationship.

The Claimant claimed against the Defendant for misuse of private information and breach of copyright, seeking damages and a permanent injunction to restrain publication of the book and the photographs.

Claim for misuse of private information

Mr Justice Knowles found that the Claimant had a reasonable expectation of privacy in relation to all four categories of information. Sexual behaviour is an aspect of private life and is heavily protected by Article 8 (the right to respect for private and family life). Whether or not the information is true or false it contained deeply personal and intimate information concerning the Claimant’s sex life with the Defendant. Further, details of a family’s lifestyle within a household and, in particular, the circumstances of a child’s upbringing carry a reasonable expectation of privacy. The Judge found that a reasonable person of ordinary sensibilities placed in the same position as the Claimant would expect that the information would remain private. The Claimant had confided intimate details to someone he was in an intimate relationship with and on terms which indicated he was speaking to her confidentially. The last thing that he would expect is that it would be published to the world.

The Defendant argued that the Claimant had consented to the publication of the information because he took no previous steps to prevent the book being published. Mr Justice Knowles found that the Claimant did not know what the Defendant was going to publish and did not give blanket consent to the publication of any of his private information.

The Judge also found that the information was not in the public domain and had not lost its private character.

In balancing the Claimant’s Article 8 right to a private life against the Defendant’s Article 10 right to freedom of expression, the Judge attached great weight to the harmful impact on the Claimant’s children of the revelations about their father’s sex life.

Mr Justice Knowles found that there was no legally recognisable public interest in the Defendant writing about her sexual relationship with the Claimant. He referred to the well-established principle that ‘kiss and tell’ stories that do no more than satisfy readers’ curiosity about the private lives of other persons, however well known to the public, do not serve any legally recognised public interest. The Judge rejected on the facts the Defendant’s argument that there was a public interest because she had a need to ‘set the record’ straight about what happened between her and the Claimant and to rebut derogatory allegations made about her. He concluded that the publication of the information represented a serious infringement of the Claimant’s Article 8 rights and those of his ex-wife and children, such as to outweigh the Defendant’s right to publish under Article 10.

Mr Justice Knowles granted a permanent injunction to restrain publication of the information. The Claimant was awarded £10,000 for misuse of his private information, considering the distress caused to him and his family, the highly personal nature of the information but also the limited publication of the information. He also received aggravated damages of £2500 because the Defendant had breached an interim non-disclosure order.

Claim for breach of copyright

The Claimant argued that the photographs were sent as part of private conversations with the Defendant and that he did not ever give her permission to use or publish them. The Defendant argued that the Claimant gifted her the photographs without any restriction on their use. Mr Justice Knowles found that the photographs were taken by the Claimant and sent to the defendant in circumstances which did not amount to a grant of permission to publish them to the world. Therefore, the claim for copyright infringement also succeeded, and damages of £50 awarded.

Laura Baglow is head of NetRights, the Social Media, Internet and Media Law department of Parnalls Solicitors. For legal advice and assistance about unauthorised publication of your private information or images please contact enquiries@netrights.co.uk or telephone 01566 772375. Find out more about NetRights here.

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