Judge refuses to rule that damage to reputation cannot be subject of a privacy claim

In Hannon and another v News Group Newspapers and Commissioner of Police of the Metropolis (http://www.bailii.org/ew/cases/EWHC/Ch/2014/1580.html), News Group Newspapers (‘NGN’) sought to strike out two privacy Claims, primarily on the basis that they should have been brought in defamation. 

The Claimants had issued proceedings after apparently discovering, during the course of Operation Elveden, that corrupt payments had been made by The Sun to police officers, resulting in articles about their respective arrests in the newspaper.  The Claims were brought in breach of confidence, breach of privacy and misuse of private information.

NGN argued that damage to reputation was at the heart of both Claims and that such a claim could not be framed in breach of confidence or privacy.  Any claim in defamation was long since statute-barred, the articles both having appeared in 2009.  The Court should not allow the Claimants to sidestep the law of defamation.  Insofar as the Court considered there to be any privacy element, there could be no reasonable expectation of privacy in relation to the fact and circumstances of an arrest.

Mr Justice Mann accepted that there was a substantial reputational element to both Claims.  However, he could find no clear and binding principle to support the suggestion that a claim for damage to reputation could not be framed within actions in confidence and privacy.  In those circumstances, His Lordship, found it would be wrong for him to reach such a decision in an application of that nature (although if he had to decide the point, he would be more likely to conclude that a reputational issue could be brought within a privacy claim).  The law of privacy is a developing one and there were likely to be several fact sensitive issues. As to whether there could be an expectation of privacy in respect of the fact and circumstances of an arrest, His Lordship found that the level of legitimate public interest in such matters varies according to a number of factors.  Arrests are not ‘judicial facts’ and therefore do not automatically attract the publicity that judicial facts generally do.