High Court provides commentary on truth, allegations of criminal conduct, sex life, and acts in public, in privacy cases

A recent Judgment of Fordham J (Mullen v Lyles [2025] EWHC 645 (KB)), reversing, on appeal, an order of Deputy Master Marzec striking out a claim for the misuse of private information, provided some useful commentary on several knotty issues that crop up in privacy cases.

Background

The Claimant was an events organiser, and a friend and business associate of the Defendant.  In August 2022, the Defendant invited the Claimant to attend a music festival.  The Claimant stayed with the Defendant and a group of the Defendant’s other friends.  In early November 2022, the Claimant ended his business relationship with the Defendant.  Not long thereafter, the Defendant sent a WhatsApp message accusing the Claimant of sexually assaulting one of his friends at the festival.  The message was seen by one of the Claimant’s other business associates.  The following January, the Claimant accused the Defendant of making similar allegations in an Instagram message and subsequent conversation with a further business associate.  The Claimant sued the Defendant in defamation and the misuse of private information.

It is common ground that the Claimant engaged in some consensual sexual activity at the festival with a couple who were friends of the Defendant (anonymised in the proceedings as ‘the Woman’ and ‘the Man’).  In short, the Claimant contends that all such activity was consensual, whereas the Defendant contends that the Claimant later sexually assaulted the other parties.

In late November 2023, the Defendant applied to strike out the Claimant’s claims.  In 2024, Deputy Master Marzec rejected the application in respect of the defamation claim, but struck out the misuse of private information claim.  The Claimant’s appeal of the latter decision came before Fordham J in February 2025, with Judgment handed down in April 2025.

Analysis of the first instance decision

The basis of the Defendant’s application to strike out the misuse of private information claim had been simply that – even on the Claimant’s own case as to the facts – such limited and targeted publication (three publications to two people) of information which had not come into the Defendant’s possession by ‘intrusive means’ could not unjustifiably have interfered with the Claimant’s privacy rights.

Fordham J observed that Deputy Master Marzec arrived at her decision to strike out by different analysis, connecting (in what Fordham J described as an ‘exercise in logical synthesis’):

1. the proposition that allegations of ‘current criminal conduct’ will not typically attract an expectation of privacy (which was suggested in the 12^th (2013) edition of the leading practitioner text Gatley, and had been quoted by the Supreme Court in Bloomberg LP v ZXC [2022] UKSC 5); with
2. the principle that the question of the truth or falsity of the information is generally irrelevant to liability for misuse of private information.

On the basis of that connection, the Deputy Master concluded that whilst allegations of current criminality may, if false, give rise to a good claim in defamation, they ought to be protected from an action in which the question of truth or falsity is irrelevant (or at least where the allegations were ‘not clearly and obviously untrue’).  In so concluding, she noted that the decision in ZXC related to a criminal investigation by police, which was distinct from freestanding allegations of criminal conduct.

Fordham J determined that this analysis was flawed, but he was keen to stress that the Deputy Master had not been given the ‘correct starting point’ by the parties’ respective advocates, who came in for criticism generally.

At the appeal hearing, the Defendant’s advocate did not seek to defend the Deputy Master’s analysis, and instead argued that the first instance decision should stand for different reasons, which were referred to by Fordham J as ‘the cross-appeal’.

Observations on the law

Truth and the misuse of private information

The question of whether someone has a reasonable expectation of privacy (the so-called ‘stage 1’ test) is concerned with whether or not information is private, and not whether it is true or false.  It follows that a claim in misuse of information may be available even when the relevant information is true.  The Deputy Master was right to identify this principle.  However, this is a principle, and not a ‘rigid exclusionary rule’; it ‘permits of a nuanced approach’.  The Court is to take account of all the circumstances when assessing whether there is an expectation of privacy; it may be appropriate for the Court to decide the facts regarding a relevant circumstance.  In any event, the stage 2 test (the question of whether the expectation of privacy is outweighed by freedom of expression), is a fact-specific exercise in which it may well be relevant to decide the truth or falsity of the matters raised.  In the instant case, the principle was treated in the Deputy Master’s analysis as though it were a rigid exclusionary rule, including at stage 2, and that had led the Deputy Master to the (public interest) concerns which she had expressed, and upon which her decision to strike out had been founded.

A claim in the misuse of private information could be susceptible to strike out as an abuse of process where the nub of the complaint was falsity, and a claimant was seeking to avoid the rules of defamation (particularly as regards the rule against prior restraint) but no such argument had been made in the instant case.

Criminal conduct and the misuse of private information

Whilst the 12^th edition of Gatley on Libel and Slander had included ‘current criminal activity’ as an example of information which would not normally be regarding as giving rise to a reasonable expectation of privacy, the current (13^th 2022) edition (and its 2024 first supplement), which had been updated, inter alia, in light of ZXC itself, no longer did so, and instead suggests that allegations of criminality may attract such an expectation, whilst acknowledging that this is one of the most difficult questions with which the Court is presented.

Fordham J observed that it is difficult to generalise about the treatment of privacy claims based on allegations of criminality (including whether any public policy concerns tending against such claims should be considered as part of stage 1 or stage 2 of the test) and that such cases compellingly illustrate why there can be no rigid exclusion of an enquiry about the truth or falsity of the information.  The public interest/public policy arguments presuppose the truth of the information about the individual’s conduct, but in some cases the Court may find that they are false.  It cannot be that a false assertion of criminal conduct would mean that a claim for the misuse of private information cannot proceed.  In short, communicating information about a crime may, or may not, be a misuse of private information.

Decision on appeal

Fordham J found that:

1. The Deputy Master’s analysis had been premised on there being a rigid exclusion of any enquiry as to truth or falsity; this was a material error which she had been drawn into, in part by the failure of both parties to address the Court on the ‘nuanced qualification’
2. The Deputy Master’s analysis also entailed a generalised conclusion about information describing criminal conduct. This was grounded in concerns about victims and witnesses of crime; the Judge had not been made aware of the particular inappropriateness of any rigid exclusionary rule regarding truth and falsity in the context of such allegations
3. In that context, the Judge had been taken away from a fact-specific assessment of the case. This was not, in fact, a case about ‘current’ criminal conduct, but ‘past’ criminal conduct, the Defendant was not the victim, and -taking the Claimant’s case at its highest (which is the necessary approach to strike-out), this was not a case of reporting which is truthful or in good faith
4. Concerns about the overlap with defamation had not been raised.

For all these reasons, the Judge’s reasoning could not stand as a basis for strike-out.

The Defendant’s ‘‘cross-appeal’’

As above, the Defendant sought to argue for the maintaining of the Deputy Master’s decision on the following, alternative, grounds, and with reference to the so-called ‘Murray factors’ (from Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446):

• The Claimant was an events organiser, which attracted particular scrutiny of his conduct at events.
• The Claimant’s (admitted) activity involved sexual interactions with two people; he had been positively flaunting his sex-life.
• The events had taken place in public.
• The intrusion complained of concerned no more than appropriate criticism and succinct allegations of impropriety without intimate details.
• There was implied consent arising from the Claimant’s failure to control his own behaviour.
• The effect on the Claimant was not about his sex-life but only an allegedly untrue allegation of force.
• Even if there was no sexual assault, there was outraging public decency which is itself a criminal offence.
• Communication was to two people

Observations on the law

Sex-life

An individual’s sex-life is ‘high order’ private information.  Gatley footnotes dozens of reported privacy cases concerning personal relationships, intimate details of personal relationships and sexual orientation.

Conduct in public

The place at which an activity occurs is one of the Murray factors; there is undoubtedly significance in whether events take place in private or in public, but no bright-line distinction.  There is a zone of interaction with others, even in public, which may nevertheless fall within one’s private life.

Decision on cross-appeal

Fordham J found that:

• The submissions on behalf of the Defendant were incomplete. They omitted, taking the Claimant’s case at its highest, potentially relevant circumstances, such as that the events occurred in a ‘free sexual environment’, the Man and the Woman had initiated the sexual activity, it had been consensual, the Defendant knew that there was no assault and no force, and had fabricated his report out of ill-will.
• The submissions were contentious, characterising the Claimant’s actions as ‘flaunting’, inviting pre-trial findings of facts about the location, and attempting to re-write the communications complained of to refer to a different offence which would apply equally to the Man and the Woman who were being portrayed by the Defendant as victims.
• They pre-supposed a pre-trial public/private bright line, with the Defendant asking the Court to confidently predict where the line would be drawn without the benefit of a trial and findings on all the circumstances.

In the round, the Judge was ‘quite sure’ that both the stage 1 and stage 2 test (if relevant) was required to be undertaken in light of the evidence and a solid platform of findings of fact as to the relevant circumstances (i.e. at trial).