West Law Report

HOME SECRETARY v BRITISH UNION FOR THE ABOLITION OF VIVISECTION & ANR

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division Eady J April 25, 2008
Queen’s Bench Division

Eady J

April 25, 2008

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Animal research organisations – Animal welfare – Confidential information – Data protection – Privacy – Public interest – Requests for information – Vivisection – s. 24 Animals (Scientific Procedures) Act 1986 – Duty of confidence – Misuse of private information – Breach of confidence – Animals (Scientific Procedures) Act 1986 – S. 24 Animals (Scientific Procedures) Act 1986 – s. 41 Freedom of Information Act 2000 – s. 44 Freedom of Information Act 2000 – Freedom of Information Act 2000 – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed, pursuant to the Freedom of Information Act 2000 s. 59, against a decision of the Information Tribunal. The breeding and supply of animals for scientific procedures was governed by the Animals (Scientific Procedures) Act 1986 and the Home Office was responsible for related regulation.

Applications to use animals for research had to be submitted to its Animal Scientific Procedures Division for scrutiny before a decision to grant a project licence could be made. Statutory requirements meant that material that was commercially sensitive or useful to competitors and details of locations that could be sensitive for security reasons might have to be included.

The division responsible introduced a policy that tried to balance confidentiality with freedom of information requirements: applicants were asked to submit abstracts of their projects for the Home Office website.

Shortly after the new policy began, the first respondent (B) sought, under the 2000 Act, further information on certain applications. Consequently, information extra to the abstracts that was not exempt under the 2000 Act was provided. B submitted to the tribunal that under s. 24 of the 1986 Act, a penal provision, any information qualifying as “given in confidence” had to be such that it would be an actionable breach for it to be revealed in response to a request under the 2000 Act.

The tribunal upheld that view, interpreting s. 24 as having a similar meaning to s. 41 of the 2000 Act and directing the Home Office to reconsider its interpretation of s. 44 of the 2000 Act. The main issue in the instant case was how far information needed to be made available to the public, given that it had a legitimate interest in knowing what was taking place with regard to animal research, and given the right to make requests under the 2000 Act.

ISSUE

How far information needed to be made available to the public.

HELD (appeal allowed)

(1) The tribunal had relied on the principles of Coco v AN Clark (Engineers) Ltd [1968] FSR 415 Ch D, which provided an exclusive definition such that, whenever “in confidence” appeared in a statute, the legislature must have had those principles in mind. That was not necessarily the case and much depended on context.

The tribunal also read the notion of “public interest” into s. 24 of the 1986 Act, imposing an onerous obligation to weigh up its existence in every case of prima facie confidentiality. The modern law of confidence was wider than the principles applying where an equitable duty of confidence arose, or where there were commercial secrets; it could also arise by express or implied agreement, and presumably under a statutory duty, and there was also a distinction between “old-fashioned breach of confidence” and the modern tort of “misuse of private information”, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 considered.

It was important in the instant case to remember the need to look at the jurisprudence of the European Convention on Human Rights 1950 art. 8 and art. 10. The tribunal had not addressed those developments and so had proceeded on an incomplete legal basis.

(2) There was tension between s. 24 of the 1986 Act and the aim of greater public access to information that underlay the 2000 Act. It was clear that the government deliberately retained s. 24 of the 1986 Act when repealing provisions before the 2000 Act, and did so as the scientific community had been concerned about confidentiality if it was repealed.

Thus, the court should probably assume that s. 24 was included to provide additional or parallel protection to that in s. 41 of the 2000 Act and its effect should not be diluted. The court should not assume that there was no such intention.

Parliamentary materials gave no answer in the instant case, let alone one that pointed to the tribunal’s interpretation, and the tribunal had erred in concluding that the history of s. 24 of the 1986 Act lent it support.

(3) The instant court’s interpretation was based on the statutory wording, its context, the modern law of confidence and the arguments of the parties.

Accordingly, the information sought by B was obtained by the Home Office division in the exercise of its functions under the 1986 Act; the relevant official reasonably believed that it had been “given in confidence” at the time given; the disclosure sought from the Home Office would not be for the purpose of exercising its functions under the 1986 Act; the terms of s. 24 of the 1986 Act as it stood meant that disclosure was prohibited and would constitute a criminal offence; and the exemption in s. 44 of the 2000 Act applied to the information sought.

Karen Steyn (instructed by Treasury Solicitor). Daniel Alexander QC (instructed by David Thomas) for the first respondent. Akhlaq Choudhury (instructed by Geraldine Dersley).

MOSLEY v NEWS GROUP NEWSPAPERS LTD

Last updated: 4:12 PM BST 29/04/2008
Queen’s Bench Division

Eady J

April 9, 2008

Freedom of expression – Newspapers – Privacy – Public interest – Video recordings – Websites – Reasonable expectation of privacy – Extensive publication – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The applicant (M) applied for an interim injunction to prevent the respondent newspaper company (N) from making available a short extract of video footage of him taking part in sexual activities with prostitutes. M was the president of a worldwide governing body of motor sport. N had published an article in its newspaper with a headline and article suggesting that he was involved in a “Nazi orgy”. Still photographs taken from the video footage were published alongside the article. The article and edited video footage were made available on N’s website until M complained on the day of publication when it was voluntarily removed and an undertaking given that it would not be shown again without 24 hours’ notice. Such notice was given three days later. After the initial publication the incident received extensive coverage throughout the world in newspapers and on websites. As a result there were a number of websites where the footage was available continuously. M did not dispute that the events as shown in the footage occurred. M submitted that the events shown in the footage were private and that their display breached the European Convention on Human Rights 1950, art. 8. He also contended that the incident was unrelated to Nazism. N argued that, since the material had been taken off the website, M had gone on record denying the allegations and that to that extent it should be entitled to refute his statements and vindicate the accuracy of its account.

ISSUE

Whether the events shown in the footage were private and that their display breached M’s right under the European Convention on Human Rights 1950, art. 8.

HELD (application refused)

(1) There was no doubt that M’s rights under art. 8 came into conflict with those of N under art. 10. One question that had to be answered was whether, in respect of the information contained in the edited footage, M still had a reasonable expectation of privacy, having regard to everything that had happened since the original publication. It was also appropriate to ask whether any limiting factors came into play, Attorney General v Observer Ltd [1990] 1 AC 109 HL applied.

A relevant consideration was whether there was a public interest in revealing the material which was powerful enough to override M’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs. The answer to that question was in the negative. Insofar as the public was ever entitled to know about M’s sexual tastes, the matter had already been covered extensively since the original coverage. There was no legitimate element of public interest that would be served by the additional disclosure of the edited footage, at the instant stage, on N’s website. One aspect of the public interest was the need to protect the public from being misled by a statement made by or on behalf of the relevant claimant. M had denied the link to Nazism. The edited footage did not convincingly show that his denial was false. But even if it was capable of being so construed, there was nothing to prevent N reasserting with whatever prominence it thought appropriate, that there was Nazi role-play. Accordingly if there was a case for saying that M’s denials had in any way misled the public and that the record should therefore be put straight for that reason, the objective could be achieved effectively without displaying the edited footage.

(2) The other limiting factor to be considered was whether the information contained in the edited footage had lost its privacy to the extent that there was nothing left for the law to protect. In the circumstances the material was so widely accessible that an order in the terms sought would make very little practical difference. One might express that conclusion either by saying that M no longer had any reasonable expectation of privacy in respect of the now widely familiar material or that, even if he had, it had entered the public domain to the extent that there was, in practical terms, no longer anything that the law could protect.

James Price QC and David Sherborne (instructed by Steeles Law)) for the applicant. Gavin Millar QC and Anthony Hudson (instructed by Farrer & Co) for the respondent