The US Supreme Court on Monday agreed to hear argument about the constitutionality of section 230 of the Communication Decency Act.  The case on appeal, Gonzalez v Google is by an unsuccessful applicant from a decision of the 9th US Court of Appeal.

Section 230 has provided to Social Media sites and has come under growing criticism with the growing power of and some say, aggression of content Read the rest of this entry »

The Court of Appeal upheld the summary judgment decision of Warby J in HRH The Duchess of Sussex v Associated Newspapers Limited [2021] EWCA Civ 1810 which found that Associated Newspapers Limited had breached the Duchess’ reasonable expectation of privacy with the publication of a letter from her to her father Thomas Markle.

FACTS

The court summarised the facts as:

• Mr Markle did not attend the wedding of the Duke and the Duchess on 19 May 2018 [14].
• He was admitted to hospital days beforehand for emergency heart surgery.
• Text messages from the Duchess  made it plain that  before the wedding Mr Markle behaved in ways which caused her

“concern because of the publicity they were likely to and did cause, and the impact on her, [the Duke], and [Mr Markle]”.[14]

• • Mr Markle:
    • engaging with the media (e.g. a front-page Mail on Sunday report on 13 May 2018 was headed “Meghan’s Dad staged photos with the paparazzi”, and reported that Mr Markle was “colluding with the paparazzi to stage a series of lucrative photo opportunities”, for which he apologised by text to the Duchess on 14 May 2018).[15]
    • being well aware that the Duke and Duchess wanted him to avoid engaging with the media, and that all their correspondence was personal and private in character [16].
    • continuing, thereafter, to have dealings with the media which resulted in press articles. The Articles themselves referred to “a series of damaging interviews” given by Mr Markle [16].
  • The Duke texting Mr Markle on 17 May 2018 asking him to “stop talking to the press for your sake and hers”, and expressing concern that Mr Markle had not “returned any of our 20+ calls since we all spoke on Saturday morning” [15]. the run-up to the wedding was fractious, revealing substantial differences of approach to dealing with the media.

The letter

• The Letter was sent on 27 August 2018 with bold text identifying words published in the Articles, and italicised text being the judge’s interpolations [18]:

Read the rest of this entry »

It is widely reported (in the Guardian, the Australian, the Nine Fairfax Press, the ABC etc) that Meghan, Duchess of Sussex has commenced proceedings in the High Court for misuse of private information.  She has, as is often the case involving the use of private communications which find their way into the media’s hands, also alleged a breach of copyright.  Additionally a breach of the General Data Protection Regulation is another cause of action.

The basis for the claim is a private letter from Meghan to her estranged father. Parts of that letter was extracted in an article in February 2019.

The United Kingdom courts have been industrious in developing the equitable cause of action of misuse of private information in the context of considering the operation of Articles 8 and 10 of the Human Rights Act.  The development has proceeded to Read the rest of this entry »

Recently Justice Warby in TRK & BVP v ICM 2016] EWHC 2810  granted an injunction Read the rest of this entry »

Yesterday in Pippa Middleton & anor v Person Unknown or Persons Unknown [2016] EWHC 2354 (QB)  Mrs Justice Whippie continued an injunction made on 24 September 2016 prohibiting the publication of photographs hacked from Pippa Middleton’s iCloud account.  The media reports that Read the rest of this entry »

On Saturday 10 October 2015 in J.P.H v X.Y.Z [2015] EWHC 2871 the High Court, Queens Bench Division, per Justice Popplewell granted a non disclosure order restraining the publication of images and information in a revenge porn case.

Facts

JPH is described as a successful professional actor who Read the rest of this entry »

The UK High Court in AMC & KLJ v News Group Newspapers Ltd [2015] EWHC 2361, per Laing J, granted an injunction in relation to a proposed story about an infidelity of a UK former sportsman.

FACTS

On the evening of Friday 31 July 2015 the solicitor Read the rest of this entry »

After a surge in their use, followed by some criticism, the use of injunctions in the privacy/misuse of private information proceedings in the United Kingdom has been quite restrained in the last few years.  That such an order is available to the court is demonstrated in the recent decision of AMM v News Group Newspapers [2014] EWHC 4063 (QB) where the Court, per Stewart J, granted an injunction restraining News Group Newspaper from publishing private information.

FACTS

The Defendant is the publisher of the Sun on Sunday. The application for an injunction sought Read the rest of this entry »

In Prest v Petrodel Resources 2013] UKSC 34 the UK Supreme Court considered when it was appropriate to pierce the corporate veil of companies. It is a very significant decision which may be influential in Australia.

 FACTS

The appeal relates to ancillary relief sought by the respondent following divorce proceedings.  The Appellant, the wife, sought recovery under the Matrimonial Causes Act or orders which would permit the court to pierce the corporate veil of a number of companies which were wholly owned and controlled by the the husband.  At first instance the trial judge found there was no general principle which entitled him to reach the companies assets by piercing the corporate veil [6].  The wife was unsuccessful on appeal to the Court of Appeal.

DECISION

The wife was successful on the basis, the court found, that the husband, and not the companies, had originally provided the funds for the properties in dispute to be bought.  Trust law principles were applied and the court found that the companies held the properties in trust for him.  As he was ‘entitled’ to them the court could transfer them to the wife.

While the Appellant was unsuccessful in her appeal seeking order to pierce the corporate veil  the judgment was most significant in its consideration of the principle as to when the corporate veil may be pierced and the limitations on the doctrine.

LORD SUMPTION

His Lordship commenced his analysis by discussing what piercing the corporate veil actually means and, critically, what it doesn’t mean. As to its meaning he said “..properly speaking, it means disregarding the separate personality of the company…” where “.. a person who owns and controls a company is said in certain circumstances to be identified with it in law by virtue of that ownership and control [16].” he drew a distinction between those circumstances and where the law attributes the acts or property of the company to those who control including:

1. where the controller Read the rest of this entry »

A French magazine, Closer, has brought the issue of privacy to prominence with its purchase and publication of  photographs of a topless Kate Middleton by a swimming pool while on a private holiday in Provence. The story is found here.  The Guardian reports that the Royal couple are to sue publication for an invasion of privacy.  As does the ABC and the Age.  The action will be under French civil law which has a far stronger privacy protections to those in the UK and other common law countries.

In the United Kingdom the tort of misuse of private information has developed rapidly to protect private information.  It’s genesis in the modern era is the House of Lords decisions of  Campbell v MGN Ltd [2004] 2 AC 247 and Douglas v Hello! Ltd [2008] 1 AC 1. The basis of those proceedings was a claim for breach of confidence (described as a misuse of private information).  Since Campbell “privacy” actions have developed to involve a more systematic application of the Articles 8 and 10 of the Human Rights Act 1998 as well as consideration of equitable breach of confidence principles.  The current state of the law is best summarised in McKennitt v Ash [2008] QB 73 where  Buxton LJ stated at [8]:

i) There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office [2004] 2 AC 406 [28]-[35].

ii) Accordingly, in developing a right to protect private information Read the rest of this entry »