If I Cannot Have Her Everybody Can: Sexual Disclosure and Privacy Law

If I Cannot Have Her
Everybody Can: Sexual
Disclosure and Privacy Law

Janice Richardson


It is clear from its widely publicised content that the developing area of tort law aimed at protecting against invasions of privacy raises feminist issues. In this chapter, I will examine a particular example of an invasion of privacy: the cases of ex-lovers, of both sexes, who reveal details of their sexual relationships – their existence and, often, graphic sexual material about the other party. In the case examples this disclosure has different motivations, including the desire to seek revenge (so-called ‘revenge porn’ (Levmore 2010)), financial gain or more complex motives associated with, what appears to be, kudos and macho male group bonding. As I will illustrate, an examination of these cases of sexual disclosure reverses the stereotype that heterosexual men have a straightforward and easily understood sexuality compared with heterosexual women, who are portrayed as more complex in their desires.

Most cases before the courts involve heterosexuals and I will focus upon these. The motivation for the UK case of homosexual sexual disclosure (Lord Browne of Madingley v Associated Newspapers Limited [2007]) appeared, like the cases involving women defendants, motivated by financial gain, although there could be other motivations at play. Sexual disclosure about a sexual partner is an area in which some men have tried to employ shame as a weapon against women, based upon historical sexual double standards (along with different, more complex, motives to be discussed) and some women have been motivated by financial gain.1

The meaning of privacy has been much debated. Writing within the area of information theory, Tavani (2007) usefully categorises theories of privacy into four types and associates them with other values. These are: non-intrusion (the right to be let alone, akin to negative liberty and associated with the paradigmatic legal arguments of Warren and Brandeis (1890)); seclusion (the right to be inaccessible to others, akin to solitude); limitation (the right to restrict areas of knowledge about oneself, akin to secrecy); and control (the right to be able to control the dissemination of information about oneself, akin to autonomy). I have argued elsewhere that the meaning of ‘privacy’ itself is currently altering, in the West at least, as a result of a number of contingent factors. In particular, these changes are mainly associated with improvements in women’s status as a result of continuing feminist struggles and also with the development of computer-mediated communication (Richardson, 2011).

I will briefly explain these two reasons for change in this introduction before considering the development of common law privacy cases. These cases will be discussed not only to outline the current common law position with respect to, what I am describing as, ‘sexual disclosure cases’, but also to think about how to characterise the harm that arises from such invasions of privacy. The harm in different cases is intimately linked to the claimant’s understanding of the situation. Importantly, this includes his/her assessment of the defendant’s motivations and these will be considered. It is my view that the courts have often demonstrated a more subtle appreciation of the diverse ways in which invasions of privacy affect the claimants (and hence how to characterise the right to privacy) than the more abstract analysis carried out in legal theory. I outline an example of legal theory in the area, illustrate how it is problematic and then conclude by assessing the current developments of case law.

The term ‘privacy’ raises important conceptual issues that are central to feminism, such as the way in which it has traditionally been associated with ‘women’s place’ within the home; the Ancient Greek oikos as separate from the polis. As Pateman (1989) has argued, the ‘public/private divide’, in which the domestic sphere was defined against public issues meant that the political analysis of women’s traditional subordinate status could be marginalised. Hence, in Western early modern political thought, with the exception of Hobbes, women’s subordinate status was viewed as natural and not as political (Richardson 2009). The term ‘political’ was reserved for an analysis of the relationship between the individual and the state, with power being conceived of as operating in a top-down manner from the state through law. Injustice towards women, including domestic violence, was therefore treated as a ‘private’ matter, separate from the political. This mechanism by which women’s struggles were marginalised as non-political, and even ridiculous, was challenged in the 1960s by the feminist expression, ‘the personal is political’.

Changes in women’s position, as a result of feminist struggles against subordination, have interacted with other developments that have altered our (Western) experience of the meaning of privacy today, particularly as a result of information technology. There is useful recent work in information theory in which theorists consider the impact of such change. For example, in making a point that information technology has radically altered privacy issues, Floridi (2006a; 2006b) argues convincingly that it is no longer simply the case that technological progress produces greater threats to privacy. In other words, developments in technology do not simply undermine privacy by providing faster and easier means of communication. Instead, the position is more complex with changes in, what he calls, the ‘infosphere’ (the environment in which information is exchanged) altering the extent of control that individuals can exert over information in unforeseen ways. He gives an example of men visiting the seedy area of Macau, near Hong Kong. Previously, the mobile phone dialling tone was distinct for Macau and so visitors would turn off their phones to avoid giving away their location to callers. Mobile phone companies recognised why they were losing revenue and promptly altered the dialling tone for Macau to sound like that of Hong Kong. Technological innovation (and commercial interests) thereby increased the privacy of these men. In addition, computer-mediated communication can increase our ability to have access to, and to alter, data held on us, for example in bank accounts. This may increase the risk of data being removed but also gives us some input. We are able to check the data and to seek to have it corrected. Hence, as with the mobile phone example above, new technology brings with it the potential for greater control over our data, along with privacy risks.

I will now turn to the development of the common law cases of sexual disclosure in the UK and Australia and highlight the view of harm in these cases before turning to critique the way in which harm has been theorised in liberal legal theory.

Legal development of privacy law and sexual
disclosure cases

The development of the UK common law to protect the right to privacy has occurred as a result of the Human Rights Act 1998 (HRA) coming into force in October 2000. This includes the courts within the definition of public authorities (under section 6 of the HRA) and as such they must act in accordance with the European Convention on Human Rights (ECHR). Hence, the HRA has had the effect of bringing the ECHR into the common law, as it develops on a case-by-case basis. In practice, this has meant that the UK courts have extended the law of breach of confidence in such a way as to give effect to human rights issues. The breach of confidence cases initially covered only a narrow range of facts because the claimant needed to prove that a confidential relationship existed between her (or him) and the defendant. The focus used to be upon the quality of the relationship itself (and not only on the content of the information), the most obvious example being the protection of confidences in business relationships.

In Argyll v Argyll [1967] Thomas-Ungoed J held that marriage also constituted a relationship of confidence. He was at pains to point out that, by awarding Lady Argyll an injunction to prevent her ex-husband from giving details of her pre-marital sex life to the press, he did not intend that the law should interfere with marriage as an institution. This is an early case of what has now been termed ‘revenge porn’, employing the term to include the use of words (which were likely to be sexually graphic) as well as photographic or video images. Lady Argyll had confided the details of her earlier sex life to her husband during the marriage and Thomas-Ungoed J therefore viewed his proposal to publish the information as a breach of confidence.

After the HRA, this traditional equitable remedy of breach of confidence has been interpreted so as to give effect to Article 8 (‘the right to respect for his private and family life, his home and his correspondence’, subject to Article 8(2) exceptions in the interests of national security, public safety etc) which is balanced against Article 10 (the right to free speech). Neither is given added weight. Hence, the legal test for breaches of privacy in the UK is that of Campbell v MGN [2004] and involves two stages. First, the court asks itself: would someone in the position of the claimant have a reasonable expectation of privacy? Secondly, if the first test is affirmative, the claimant’s privacy right is balanced against the public interest in free speech. As Eady J has made clear, this balance is not to be understood as the balance between an individual right against a public interest because there is also a public interest in the protection of the right to privacy (Max Mosley v News Group Newspapers [2008]: [715]). Whereas liberalism is historically concerned with protecting the rights of individuals against the state, in recent cases rights are being claimed against the harm that the media or other individuals can exert on an individual by their disclosure of private information, as a result of both old and new technology.

Initially, the cases of sexual disclosure involved famous married men, one of whom had sex with a sex worker in a brothel (Theakston v MGN [2002]) and another who had sexual relationships with two women (A v B Plc [2003]). They were both refused injunctions to prevent the women, who appeared to be motivated by either financial gain or revenge or both, from publicising their stories. Applying the law in relation to breach of confidence, the courts distinguished these relationships from marriage (and hence from Argyll v Argyll [1967]) in that they were described as ‘transitory’. Transitory sexual relationships were not viewed as giving rise to a relationship of confidence on which a claim needed to be based. In addition, it was held that the experience could be described as ‘belonging’ to the women who wanted to disclose the information as much as it ‘belonged’ to the man who wanted to stop the publicity. As I will discuss below, this way of viewing information in terms of property fits within the way Charles Fried (1984) analyses privacy and, in my view, is problematic for feminists (or at least socialist feminists, the position with which I would identify) even if it does favour women who want to sell their stories in these particular cases. I will return to this issue in the section on Fried below.

The subsequent law has moved away from this position to one of greater protection of privacy. Elizabeth Jagger was allowed an injunction to prevent the publication of CCTV footage of her engaging in sexual activity in the doorway of a nightclub, for example (Jagger v Darling [2005]). Unlike the other cases to be discussed, this case did not involve disclosure by her partner but by a worker at the club who (allegedly) accessed the CCTV footage and sought to sell it to the media. Here, the straightforward division between public and private spaces, which has been the subject of much feminist critique, clearly breaks down. The courts rightly recognise that there is a difference between the experience of being seen by a few passersby and being publicised more broadly.2

By 2008 Eady J, applying the Campbell test, viewed Max Mosley’s sexual activity with four sex workers as a case in which there was a reasonable expectation of privacy, with no public interest in disclosure to outweigh it (Max Mosley v News Group Newspapers [2008]). This finding was not ruled out by the illegality of the situation. Eady J argued that considerations of illegality were to be weighed proportionally with the right to privacy. He explained this with the use of an analogy: ‘Would it justify installing a camera in someone’s home, in order to catch him or her smoking a spliff? Surely not’ (Max Mosley v News Group Newspapers [2008]: [110]). Hence, all information pertaining to sexual relationships now give rise to a reasonable expectation of privacy, satisfying the first part of the test in Campbell v MGN [2004]. The court then considers the second part of the test: whether there is a public interest in publication. This is not the same question as to whether the public is actually interested in the disclosure but whether the public should be interested because of nepotism, for example. As mentioned above, Eady J also pointed out that this is a rights-based action, in which there is a public interest in the non-disclosure of private information:

In deciding whether a right has been infringed, and in assessing the relative worth of competing rights, it is not for judges to make individual moral judgements or to be swayed by personal distaste. It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well-recognised criteria.

(Max Mosley v News Group Newspapers [2008]: [715])

The cases sometimes lend themselves to issues of blackmail. As a specialist in media law, Eady J was astute in his criticism of Neville Thurlbeck, chief reporter for the News of the World for his attempted blackmail.3 In an attempt to persuade the three women who were loyal to Mosley to sell their stories (after they had refused payment) Thurlbeck had threatened to print their names to uncover them as sex workers. They still refused and viewed the fourth sex worker, who sold the story and secret video recording of the sexual activity, as having betrayed both them and Mosley. The impact of betrayal upon the claimant is mentioned in a number of cases (including the lead case of Campbell v MGN [2004], whose treatment for drug addiction was detailed to the press by someone at the clinic where she was receiving treatment).

In the next major case, Terry (previously ‘LNS’) v Persons Unknown [2010], Tugendhat J refused to order an injunction. However, this finding focuses upon Terry’s failure to attend court and the fact he had instructed his sponsors and not lawyers, which Tugendhat J took as evidence that Terry viewed the situation merely as a business matter. Terry’s sponsors had approached the woman with whom he had the affair and persuaded her to sign a document stating that she did not want publicity. She did not attend court to support her own Article 8 privacy claim and the implication was that they had bought her silence. Tugendhat J commented that the sexual relationship appeared to be one of equals and yet such a conclusion sat uncomfortably with the signing of the document. He concluded that Terry was only concerned about publicity because he would lose business sponsorship, associated with him being awarded ‘Father of the Year’, and therefore Terry’s interest was really only with regard to his reputation, for which the relevant tort was defamation and not privacy rights. By employing the term ‘reputation’, he was stressing that Terry’s main concern was that he would lose sponsorship deals and not that his privacy had been intruded upon.

More recently CTB v NGN Ltd (1) and Imogen Thomas (2) [2011] confirms the application of the test in Campbell that was applied in Mosley. Again, it concerned a famous married man and the reporting of a sexual affair. Therefore, the sexual relationship was deemed to raise a reasonable expectation of privacy on behalf of the claimant. This meant that any Article 10 free speech interests had to be weighed against the Article 8 privacy claim. There was no public interest in this sexual activity alone and therefore the injunction was granted. The case raised further legal issues when the man’s name was repeatedly reported on Twitter, after the injunction, and then by John Hemming, an MP in Parliament, under the protection of parliamentary privilege. The Prime Minister, David Cameron, commented that privacy injunctions were ‘unsustainable’ and promised a review (BBC News, 2011).4

As a result, NGN Ltd applied to vary the injunction twice on 16 May 2011, returning after the MP had named the claimant, and were rejected by Eady J and then by Tugendhat J. Eady J, rejecting the first application of the day, pointed out that the press would not have bothered applying to dismiss the injunction unless they wanted to continue to run the story. He also felt that a continuation of the injunction could prevent further press harassment of the family. Here, he was clear that the harm of privacy invasion differed from the disclosure of commercial secrets or confidences, which would be lost once they became widely known. Each new disclosure in this case involved greater intrusion and harassment by the press (CTB v NGN Ltd (1) and Imogen Thomas (2) [2011]: [23]).

Curiously, NGN Ltd asked that they be given permission to tell the man’s wife of the affair, pleading Article 8, ie her right to private and family life! In his judgment, Eady J described such an argument as ‘humbug’ (at [27]), given that the press were not ‘social workers’ nor were they motivated by a desire to protect her interests. Whilst Eady J does not state as much, it is clear that the media are ‘repeat players’ in this area and their application appears to be an attempt to undermine law that threatens their interests. If successful it would have had the effect of further harassing the family, who were unlikely to be the last people in England not to know of the affair.

As mentioned above, there have been arguments that the (younger and poorer) women who have had affairs with celebrities should be able to make money from it (Beckford 2011). This favours the women in the conflict but it is not necessarily a position feminists would (or should) support. It is true that historically the norms of secrecy about what occurred in the privacy of the home allowed men’s violence (and other abuse) against women to be normalised. However, this does not mean that women have no interest (as part of a public interest) in safeguarding against invasions of privacy. There are areas of privacy invasion that can themselves be viewed as sexualised abuses of power. As a matter of historical chance, these can be illustrated by examining women’s position in the Australian cases.

Australian common law