EARL SPENCER AND COUNTESS SPENCER v. THE UNITED KINGDOM



                   AS TO THE ADMISSIBILITY OF

                    Application No. 28851/95

                        and No. 28852/95

              by Earl Spencer and Countess Spencer

                   against the United Kingdom

     The European Commission of Human Rights sitting in private on

16 January 1998, the following members being present:

          Mr   S. TRECHSEL, President

          MM   J.-C. GEUS

               M.P. PELLONPÄÄ

               E. BUSUTTIL

               A. WEITZEL

               J.-C. SOYER

          Mr   H. DANELIUS

          Mrs  G.H. THUNE

          Mrs  J. LIDDY

          MM   L. LOUCAIDES

               M.A. NOWICKI

               I. CABRAL BARRETO

               N. BRATZA

               I. BÉKÉS

               D. SVÁBY

               G. RESS

               K. HERNDL

               E.A. ALKEMA

               M. VILA AMIGÓ

          Mrs  M. HION

          MM   R. NICOLINI

               A. ARABADJIEV

          Mr   M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the applications introduced on 28 September 1995

by Earl Spencer and Countess Spencer against the United Kingdom and

registered on 5 October 1995 under file Nos. 28851/95 and 28852/95;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the decision of the Commission of 2 September 1996 to join the

     applications;

-    the observations submitted by the respondent Government on

     23 December 1996 and the observations in reply submitted by the

     applicants on 7 April 1997 together with the Government's written

     responses to the Commission's further questions received on

     23 December 1998 and those of the applicants received on

     6 January 1998;

-    the parties' oral submissions at the hearing on 16 January 1998;

     Having deliberated;

     Decides as follows:

THE FACTS

     The application was introduced the ninth Earl of Spencer (who is

the brother of the late Diana Spencer, former Princess of Wales) and

by his wife. The first applicant is a British citizen, born in 1964 and

he has a permanent address in Northampton. The second applicant is a

British citizen, was born in 1965 and has an address in South Africa.

The applicants are represented before the Commission by

Mr. Simon Ekins, a solicitor practising in London.

A. Particular circumstances of the case

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     On 2 April 1995 the News of the World, a mass circulation

newspaper, published an article entitled "DI'S SISTER-IN-LAW IN BOOZE

AND BULIMIA CLINIC". This article extended from the front page to the

following two pages of that newspaper and reported the second

applicant's admittance to a private clinic for treatment for an eating

disorder and for alcoholism. It went into considerable detail on the

applicants' personal and family problems and incidents (including the

applicants' relationship, the second applicant's unhappiness about

living on the large family estate inherited by the first applicant and

the first applicant's alleged affair shortly after their marriage).

Close friends of the applicants were referred to as sources. The

article was accompanied by a photograph of the second applicant taken

with a telephoto lens while she walked in the grounds of the private

clinic, which photograph was captioned "SO THIN: Victoria walks in the

clinic grounds this week".

     On 2 April 1995 The People, also a mass circulation newspaper,

published an article about the applicants in two parts. The first part

was entitled "DI'S SISTER IN THERAPY CLINIC ... EXCLUSIVE" and also

referred to the second applicant's admission to a private clinic for

treatment for an eating disorder. The second part covered two pages,

was entitled "Dorm for Di's sister-in-law as she fights slimming

disease" and detailed the state of the second applicant's health and

the treatment regime at the clinic and made reference to the amount of

telephone calls made by the first applicant to the second applicant at

the beginning of her stay at the clinic.

     On the same day the Sunday Mirror (also a mass circulation

newspaper) published an article entitled "ALTHORP WIFE IN CLINIC - Di's

sister-in-law in addiction clinic". This article announced that the

"long suffering" second applicant was being treated at a private clinic

for a slimming disease and referred to the effect of the illness on the

applicants' marriage and noted that it was also believed that the

second applicant was receiving treatment for a drink problem.

     Later on 2 April 1995 the first applicant issued a statement

confirming the second applicant's admission to the clinic. He condemned

the intrusion into the second applicant's personal affairs, asserted

that the second applicant was a private individual and stated that he

could see no justification for the publication of the story. He argued

that if anybody needed privacy and freedom from harassment it was a

person suffering from psychological disorders.

     A response by the associate editor of the News of the World to

that statement of the first applicant was reported in that newspaper

on 14 May 1995. That editor argued that the first applicant was a

public figure by birth, was no stranger to publicity and had on many

occasions encouraged media interest in his home and family in return

for fees. As regards the second applicant's health, the associate

editor referred to a report dated August 1993 in a magazine on the

second applicant's attendance as a guest of honour at a charity evening

in aid of the Eating Disorders Association where she had allegedly

confirmed to the magazine journalist that she had suffered from such

a disorder for many years. He also referred to an interview with the

first applicant published in the Daily Mail on 5 August 1993 about the

family estate, where the first applicant had revealed that the second

applicant worked as a volunteer part-time at a hospital for young girls

suffering from anorexia, which illness had plagued the second

applicant's teenage years.

     On 3 April 1995 the Daily Mirror, also a mass circulation

newspaper, published a number of articles entitled "VICKY'S BRAVEST

BATTLE". The articles referred, inter alia, to the second applicant's

admission to the clinic, to her illnesses, to the usual causes and

symptoms of such illnesses and to the alleged rift between the

applicants which dated back, according to the article, to the first

applicant's alleged affair shortly after their marriage. The

applicants' friends were referred to as sources. A photograph of the

second applicant, similar to that published by the News of the World,

accompanied this article and was captioned "COURAGE Victoria strolls

in the grounds of the clinic where she is trying to battle her way back

to health".

     All of the articles were published, and the photographs of the

second applicant in the clinic were taken and published, without the

applicants' prior knowledge or consent.

     On 3 April 1995 the first applicant complained about the News of

the World, The People and the Daily Mirror to the Press Complaints

Committee ("PCC"), claiming breaches of certain provisions of the Code

of Practice relating to privacy (clause 4 of the Code of Practice),

activities of journalists in hospitals and other similar institutions

(clause 6) and harassment (clause 8).

     Further to this complaint to the PCC, the News of the World

printed an article entitled "HYPOCRISY OF THE ARROGANT EARL SPENCER"

on 9 April 1995. The article alleged that the first applicant had

seized every opportunity to put himself in the public eye. It claimed

that the first applicant had received £250,000.00 in October 1992 from

a magazine for an interview with the applicants at the family estate

which resulted in a nineteen page article. The article also stated that

approximately two years later the same magazine was invited to a

maternity hospital on the occasion of the birth of the applicants'

fourth child. The article went on to point out that the first applicant

had admitted having had an affair in interviews with journalists. The

article contested the claim made by the first applicant before the PCC

and stated that the relevant photograph was published after careful

consideration as the paper knew that it could be in breach of the Code

of Practice.

     The paper went on as follows:

     "If it caused offence or distress to Lady Spencer, we apologise

     to her. But one reason we carried it was to prove our story was

     true. For Earl Spencer has a rather disturbing tendency to lie

     through the back of his teeth when the press he so loves to

     manipulate uncover less than complimentary stories against him".

     The PCC concluded that the News of the World had breached the

Code of Practice. In the absence of a public interest justification,

the PCC did not accept that the publication of a photograph "taken with

a telephoto lens of a indisputably unwell person walking in the private

secluded grounds of an addiction clinic" could be anything other than

a breach of the Code. The PCC considered that, while the first

applicant's past relationship with the press may have affected the

extent to which he was entitled to privacy in relation to particular

aspects of his own life, this did not leave the press free to comment

on any matter concerning the second applicant. The PCC did not accept

that the second applicant had opened her illness to public scrutiny.

     The Daily Mirror agreed to publish an apology prior to the

determination of the PCC and therefore the PCC ruled that the complaint

against that newspaper had been resolved. The apology of the Daily

Mirror was published on 11 April 1995, was addressed to both applicants

and related to the publication of the photograph of the second

applicant.

     As regards the article in The People, the PCC considered that

matters of health fell within the ambit of an individual's private life

and that the intrusion into the second applicant's private life was not

justified. The PCC considered that while the first applicant's past

relationship with the press may have affected the extent to which he

was entitled to privacy in relation to particular aspects of his own

life, this did not leave the press free to report on any matter

concerning the second applicant, particularly, on the second

applicant's health and psychological well being. The PCC did not accept

that the second applicant had opened her illness to public scrutiny and

concluded that The People newspaper had breached the Code of Practice.

     On 14 May 1995 the News of the World published the adjudication

of the PCC against that newspaper together with an apology. That

apology was addressed to the second applicant and related to both the

article and the relevant photograph. The People newspaper also

published the adjudication and an apology, which apology was addressed

to both applicants.

     On 17 May 1995 the applicants' solicitors wrote two separate

letters to two former friends of the applicants threatening breach of

confidence proceedings for an injunction and the pursuit of a

"financial claim" and requesting an undertaking regarding further

disclosures in order to avoid an injunction hearing. The applicants'

solicitors noted that the "grossest example" of their breach of

confidence had resulted in the News of the World article of

2 April 1995 - one of the friends had passed on a private letter from

the second applicant to the press which letter contained information

about the state of her health and both friends had also leaked related

information.

     A High Court Writ was served with those letters dated 17 May 1995

claiming a permanent injunction:

     "restraining the Defendants whether by themselves their servants

     or agents or otherwise howsoever from disclosing, publishing or

     revealing to any party whomsoever or causing or permitting to be

     disclosed, published or revealed without the authority of the

     Plaintiffs any information concerning the following matters,

     namely, the private lives, personal affairs or private conduct

     of the Plaintiffs or their children, relatives, guests and

     visitors (including members of the Royal Family and their staff);

     the confidential financial affairs or business transactions of

     the First Plaintiff; any incident, conversation, correspondence

     or communication of a private nature involving the Plaintiffs,

     their marriage, their children, relatives, guests, visitors or

     staff; all being confidential information acquired by the

     Defendants during the course and as a consequence of their

     friendship with the Plaintiffs and in the First Defendant's

     position as confidant of the Second Plaintiff."

     Since the defendants did not give the requested undertaking, a

statement of claim dated 29 June 1995 was served. The statement of

claim invited the court to conclude that all or some of the information

disclosed to the press since 1989 (including the publications of the

News of the World of 2 April 1995) about the applicants had come from

one or both of the defendants. In particular, the statement of claim

founded this submission on, inter alia, specific correspondence between

the second applicant and one of the defendants in March 1995 relating

to the second applicant's admission to a treatment centre which led to

the publication in the News of the World of 2 April 1995 and on the

publication of other information on 30 April 1995 of which only the

defendants could have been aware. The applicants' suspicions had been

confirmed by a test letter dated 1 May 1995 containing false

information which had been sent by the first applicant to the second

defendant - it was clear that the first defendant had also read the

letter since he later telephoned the second applicant about its

contents; the false information appeared less than a week later in the

early editions of a newspaper; and the editor, when notified that it

was simply a ploy, confirmed that he had run the story on the evidence

of that test letter and the first defendant's telephone conversation

with the second applicant. That newspaper had also published parts of

the letter of 1 May 1995.

     In the statement of claim the applicants also requested, inter

alia,  an injunction in the terms of the summons together with damages

(including aggravated and/or exemplary damages for breach of confidence

based, inter alia, on the "great personal distress" caused to the

applicants, the consequent strain on their relationship and the effect

on the second applicant's treatment). Alternatively, an account of

profits was sought.

     On 4 June 1995 the case was settled, the High Court ordering on

a consent basis an injunction in precisely the same terms as requested

in the Writ.

B. Relevant domestic law and practice

1.   Relevant case-law

     There is no law of privacy, as such, in England and Wales (Kaye

v. Robertson [1991] FSR 62, Glidewell LJ at p. 66).

     A remedy of breach of confidence exists. It is made up of three

essential elements: the information itself must have "the necessary

quality of confidence about it", the information "must have been

imparted in circumstances importing an obligation of confidence" and

there must have been an "unauthorised use of that information to the

detriment of the party communicating it" (Coco v. A.N. Clark Engineers

Ltd [1969] RPC 41, at 47).

     Griffiths J. observed in the case of Bernstein v. Skyviews Ltd.

[1978] 1 QB 479 that the plaintiff's complaint was not that the

aircraft in question interfered with the use of his land but that a

photograph had been taken from it. He pointed out that "there is,

however, no law against taking a photograph" and that the mere taking

of a photograph cannot turn an act which is not a trespass into the

plaintiff's air space into one that is a trespass. He went on to refer

to the possibility of an actionable nuisance if the case in question

related to harassment by constant surveillance and photographing of the

plaintiff from the air.

     As regards the damages recoverable for breach of confidence,

Sir Robert Megarry, Vice-Chancellor, stated, in the case of Malone v.

Metropolitan Police Commissioner [1979] Ch. 344, that:

     " is an equitable right which is

     still in the course of development, and is usually protected by

     the grant of an injunction to prevent disclosure of the

     confidence. Under Lord Cairns Act 1858 damages may be granted in

     substitution for an injunction; yet if there is no case for the

     grant of an injunction, as when the disclosure has already been

     made, the unsatisfactory result seems to be that no damages can

     be awarded under this head ... In such a case, where there is no

     breach of contract or other orthodox foundation for damages at

     common law, it seems doubtful whether there is any right to

     damages, as distinct from an account of profits."

     In 1984 the Court of Appeal granted an injunction, based on

breach of confidence, restraining the defendants (the newspaper, its

editor and two journalists) from publishing information which had been

received from unidentified persons the latter of whom had obtained the

information by tapping the plaintiffs' telephones (Francome and Another

v. Mirror Group Newspapers Ltd and Others [1984] WLR 892).

     The "Spycatcher case" (Attorney-General v. Guardian Newspapers

(No. 2) [1990] AC 109) related to the publication by newspapers of

extracts from a book entitled "Spycatcher" in which the author

purported to recount his service in M.I.5. The Attorney General wished

to restrain publication of the book or of any report or comment on the

book. The judgment of Lord Goff (House of Lords) outlined the general

principles as regards confidential information, and the corresponding

duty not to disclose such information, as follows (p. 281B-C):

     "... a duty of confidence arises when confidential information

     comes to the knowledge of a person (the confidant) in

     circumstances where he has notice, or is held to have agreed,

     that the information is confidential, with the effect that it

     would be just in all the circumstances that he should be

     precluded from disclosing the information to others. I have used

     the word "notice" advisedly, in order to avoid the (here

     unnecessary) question of the extent to which actual knowledge is

     necessary; though I of course understand knowledge to include

     circumstances where the confidant has deliberately closed his

     eyes to the obvious. The existence of this broad principle

     reflects the fact that there is such a public interest in the

     maintenance of confidences, that the law will provide remedies

     for their protection".

     He went on to clarify (p. 281D-E) that he had expressed the

circumstances in which the duty arises in broad terms:

     "not merely to embrace those cases where a third party receives

     information from a person who is under a duty of confidence in

     respect of it, knowing that it has been disclosed by that person

     in breach of his duty of confidence, but also to include certain

     situations ... where an obviously confidential document, such as

     a private diary, is dropped in a public place, and is then picked

     up by a passer-by."

     An order of an account of profits was made against The Sunday

Times in relation to its previous publication of extracts of the book

and in this respect, Lord Goff commented as follows (p. 286):

     "The remedy of an account is alternative to the remedy of

     damages, which in cases of breach of confidence is now available,

     despite the equitable nature of the wrong, through a beneficent

     interpretation of the Chancery Amendment Act 1858 (Lord Cairns'

     Act), and which by reason of the difficulties attending the

     taking of account is often regarded as a more satisfactory

     remedy, at least in cases where the confidential information is

     of a commercial nature, and quantifiable damage may therefore

     have been suffered."

     The above-cited passages from Lord Goff's judgment on the

circumstances in which the duty of confidence arises were quoted with

approval in the case of Shelley Films Ltd v. Rex Features Ltd [1994]

EMLR 134 where the defendant photographic agency had bought and

supplied to a newspaper a photograph taken without authorisation on the

set of a film which was in closed and secret production. In fixing the

agency with the requisite knowledge, the High Court referred to a

defendant coming into possession of information in circumstances where

he "ought as a reasonable person to know" that the plaintiff intended

the information to be kept confidential. The circumstances were

considered sufficient to conclude that there was a serious question to

be tried as to whether the photographer was subject to an equitable

obligation of confidence and as to whether the agency's knowledge of

the circumstances in which the photograph was taken was sufficient for

it to be subject to the same equitable obligation. Accordingly, an

injunction was granted restraining further publication of the

photograph in question.

     The case of Hellewell v. the Chief Constable of Derbyshire [1995]

1 WLR 804, at 805 related to photographs taken of a man while he was

in police custody which local shopkeepers had asked the police to

supply for use by their security staff to reduce shoplifting. The

applicant was unsuccessful in his application for an injunction to

prevent the circulation of his photograph, the court finding that the

Chief Constable would be bound to succeed in the main action in

establishing a "public interest" defence. Laws J stated as follows:

     "If someone with a telephoto lens were to take from a distance

     with no authority a picture of another engaged in some private

     act, the subsequent disclosure of the photograph would, in my

     judgment, as surely amount to a breach of confidence as if he had

     found or stolen a letter or diary in which the act was recounted

     and proceeded to publish it. In such a case, the law should

     protect what might reasonably be called a right of privacy,

     although the name accorded to the cause of action would be breach

     of confidence."

     In the case of Michael Barrymore v. News Group Newspapers Limited

([1997] FSR 600), the second defendant had released information as

regards his relationship with the first plaintiff (including letters

exchanged between them) to the first defendant, the latter foreseeing

a series of press articles on the matter. The High Court granted an

injunction to restrain further publications of this information in the

newspaper. As to the question of compensation Mr. Justice Jacobs

pointed out (as regards the letters disclosed and to which copyright

attached):

     "the financial consequences will no doubt be a matter for the

     court to decide in due course. I say no more at this stage other

     than that newspapers which think that they can pay their way out

     of breach of copyright may find it more expensive than it is

     worth to print the material."

2.   The Press Complaints Committee ("PCC")

     This is a non-statutory body which was set up by the newspaper

industry for the purposes of self-regulation. It commenced functioning

in 1991. It is charged with the enforcement of a Code of Practice which

was drafted by the newspaper industry's Code Committee and approved by

the PCC in June 1993. The Code of Practice states that members of the

press have a duty to maintain the highest professional and ethical

standards and that in doing so they should have regard to the

provisions of the Code of Practice. The Code of Practice includes

provisions in relation to privacy (clause 4), activities of journalists

at hospitals or similar institutions (clause 6), harassment and

intimidation of subjects (clause 8) and in relation to certain public

interest exceptions (clause 18).

     If a newspaper has been found to be in breach of the Code of

Practice, the newspaper is bound by the Code to print the adjudication

by the PCC in full and with due prominence. However, the PCC has no

legal power to prevent publication of material, to enforce its rulings

or to grant any legal remedy against the newspaper in favour of the

victim.

COMPLAINTS

     The first applicant submits that the United Kingdom has failed

to comply with its obligations under the Convention to protect his

right to respect for his private life in that it has failed to prohibit

the publication and dissemination of information relating to his

private affairs and to provide a legal remedy whereby he could have

prevented such action or claim damages thereafter for the loss and

distress caused.

     The second applicant refers to the taking of photographs with a

telephoto lens without her knowledge or consent while she was on the

private grounds of a clinic where she was obtaining treatment. She also

argues that the United Kingdom has failed to effectively protect her

private life in that it has failed to prohibit the taking, sale,

publication and further publication of such photographs and to provide

a legal remedy whereby she could have prevented such action or claim

damages thereafter for the loss and distress caused.

     The applicants invoke Articles 8 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The applications were introduced on 28 September 1995 and were

registered on 5 October 1995.

     On 2 September 1996 the Commission decided to join the

applications and to communicate the applications to the respondent

Government and invite them to submit written observations on the

admissibility and merits of the cases.

     The Government's observations were received on 23 December 1996

after one extension of the time-limit fixed for that purpose. The

applicants' observations were received on 7 April 1997 after two

extensions of the time-limit fixed for that purpose.

     On 20 October 1997 the Commission decided to hold a hearing on

the admissibility and merits of the applications and requested further

observations on certain matters. The Government's further observations

were received on 23 December 1997 and those of the applicants were

received on 6 January 1998.

     The hearing was held on 16 January 1998. The Government were

represented by Mr. Iain Christie, Agent, Foreign and Commonwealth

Office and Mr. James Eadie, Counsel together with Mr. Paul Jenkins and

Mr. Philip Stevens as advisers. The applicants were represented by

Mr. Michael Briggs Q.C., Counsel, Mr. Jason Coppel, Counsel and by

Mr. Simon Ekins, Solicitor.

THE LAW

     The applicants complain about a failure by the United Kingdom to

fulfil its obligations under the Convention to protect their right to

respect for their private lives in that it has failed to prohibit the

publication and re-publication of information (photographs in the case

of the second applicant) relating to their private affairs or to

provide a legal remedy whereby they could have prevented such

publication or claim damages thereafter for the distress caused. They

invoke Articles 8 and 13 (Art. 8, 13) of the Convention.

1.   Article 8 (Art. 8) of the Convention, insofar as relevant, reads

as follows:

     "1. Everyone has the right to respect for his private ... life

     ... .

     2. There shall be no interference by a public authority with the

     exercise of this right except such as is in accordance with the

     law and is necessary in a democratic society ... for the

     protection of the rights and freedoms of others."

     The Commission is of the view that it is not necessary to

consider the Government's submission that, to the extent that the

information published relates to the second applicant only, the first

applicant cannot claim to be a victim of a violation of the Convention

because the Commission considers that his application is, in any event

and for the reasons set out below, inadmissible on other grounds. In

addition, the Commission notes that the first applicant submits in his

first written observations that the same matters give rise to a

separate issue under Article 8 (Art. 8) as regards his family life.

However, and even assuming that this complaint has been introduced

within the time-limit set down in Article 26 (Art. 26) of the

Convention (by way of the full citation of Article 8 (Art. 8) in the

application form initially submitted) the Commission is of the view

that the matters raised by the first applicant under Article 8

(Art. 8) of the Convention fall primarily to be considered in the

context of the private life element of that Article.

     The applicants essentially submit that the Government are under

a positive obligation to provide effective protection for the rights

guaranteed by the Convention. Given the terms of Article 10 (Art. 10)

of the Convention, the absence of an effective domestic remedy as

regards invasions of privacy by the press constitutes a failure to

effectively respect their right to respect for their private lives as

guaranteed by Article 8 (Art. 8) of the Convention.

     The Government argue that the domestic system as a whole

(including remedies in breach of confidence and against trespass,

nuisance, harassment and malicious falsehood together with the Press

Complaints Commission) provides adequate protection to individuals and

an appropriate balance between the often competing rights guaranteed

by Articles 8 and 10 (Art. 8, 10) of the Convention.

     The Commission recalls that the obligation to secure the

effective exercise of Convention rights imposed by Article 1 (Art. 1)

of the Convention may involve positive obligations on a State and that

these obligations may involve the adoption of measures even in the

sphere of relations between individuals (Eur. Court HR, Plattform

"Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series A no.

139, p. 12, para. 32).

     On the facts as presented by the parties, the Commission would

not exclude that the absence of an actionable remedy in relation to the

publications of which the applicants complain could show a lack of

respect for their private lives. It has regard in this respect to the

duties and responsibilities that are carried with the right of freedom

of expression guaranteed by Article 10 (Art. 10) of the Convention and

to Contracting States' obligation to provide a measure of protection

to the right of privacy of an individual affected by others' exercise

of their freedom of expression (see, mutatis mutandis, No. 10871/84,

Dec. 10.7.86, D.R. 48, p. 158 and No. 31477/96, Dec. 15.1.97,

unpublished).

     However, the Government's principal argument is that the failure

of the applicants to pursue a breach of confidence action against,

inter alia, the relevant newspapers amounts to non-exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention. It is not disputed that the three essential elements of a

breach of confidence action are those outlined by Megarry J in Coco v.

Clark Engineers (loc. cit.).

     In the first place, and as regards the nature of the information

published, the Government submit that information about a person's

medical condition and treatment (X and Y 1988 2 AER 648), marriage

(Argyll v. Argyll 1967 Ch 302), adulterous relationships (Stephens v.

Avery 1988 1 Ch 449 and Michael Barrymore v. News Group Newspapers

Limited, loc. cit.) together with consequent commentary on the care

arrangements for the children would be considered, in principle, as

confidential. The Government therefore consider that the information

published on 2 April 1995 was "confidential" information. However, the

re-publication of that information on 3 April 1995 would not attract

the protection of the law of breach of confidence because once

confidential information is disclosed to a substantial number of

persons, it loses its confidential nature.

     Secondly, and as to the "circumstances importing an obligation

of confidence", the Government submit that the true test is whether the

newspaper was or should have been aware of the confidence attaching to

the information and this comes from the language used in the Coco case

(loc. cit.). This means that once a newspaper obtained information from

the applicants' friends relating to the second applicant's medical

condition and treatment and the applicants' relationship and marriage,

the newspaper would have necessarily been aware of the nature of the

information and, accordingly, the duty of confidence which those

friends had owed to the applicants and had obviously broken. This

implied knowledge on the part of the newspaper of the breaking of an

obligation of confidence, based on the nature of the information

itself, is sufficient to fulfil this second element of the breach of

confidence action. Anonymous disclosures would work in favour of

plaintiffs in view of the necessary conclusions a newspaper should draw

from the desire for anonymity when disclosing information of a

confidential nature. The Government refer to certain cases (including,

Shelley Films Ltd, the Francome case and the Barrymore case, all loc.

cit.) where injunctions were granted on the basis of breach of

confidence where there were no prior relationships between the

respective plaintiffs and defendants.

     Thirdly, and as to "unauthorised use of that information", it is

plain, according to the Government, that the applicants consider the

disclosure and subsequent publication in the press of such confidential

information to constitute unauthorised use of that information.

Moreover, the Government submit that once it is established that

confidential information was used as a "springboard" to the obtaining

of other information (for example, subsequent investigations undertaken

to attempt to obtain independent verification of confidential

information disclosed), such use of confidential information would

constitute "unauthorised use" and would be, accordingly, enjoined

(Seager v. Copydex Ltd [1967] 1 WLR 923). Therefore, where it is

claimed by a defendant that the relevant published information was only

partly confidential, the Government submit that once a plaintiff proves

that the initial source of information was confidential (and the

applicants' case in this respect in the domestic proceedings is, in the

Government's view, compelling), the burden of proof shifts from the

plaintiff to the defendant who must show that the information was

obtained completely independently of the confidential source.

     The Government also argue that the above principles apply equally

to the photograph of the second applicant because the photograph must

be considered in the context in which it was published (namely,

accompanied by captions and articles). Taken in that context it was

meant to convey and conveys confidential information. Moreover, the

Government submit that there is no legal bar to restraining the

publication of photographs, relying, inter alia, on the obiter dicta

of Laws J in the Hellewell case (loc. cit.) and the injunction granted

in the Shelley Films Ltd case (loc. cit.). Accordingly, the

Government's case is that it is not the taking of the photograph which

can be sanctioned but rather its subsequent distribution and

publication accompanied by captions and the articles. As to the Kaye

and Bernstein cases (loc. cit.), the Government point out that breach

of confidence was not advanced as an argument in those cases.

     Fourthly, and as to the remedies for an action in breach of

confidence, the Government point out that while an injunction will be

granted to prevent publication or imparting of confidential

information, it will be refused if there is a genuine "public interest"

in the published material or if the information is considered trivial.

They specify that neither of such limitations applies in these cases.

In addition, an injunction can be granted after publication in relation

to publication of new information but not in relation to the re-

publication of the same information. Moreover, and relying on the

above-cited extract from p. 286 of Lord Goff's judgment in the

Spycatcher case, damages can be obtained in addition to an injunction.

While the Government do not specify whether the grant of an injunction

restraining publication in the future of new confidential information

allows the grant of damages for past disclosures, they note that the

applicants claimed exemplary/aggravated damages in relation to past

disclosures in the Writ of 17 May 1995.

     Furthermore, the Government point out that the remedy of an

account of profits is available irrespective of whether or not an

injunction could also be ordered. As to the applicants' submission that

there is no reported case where such an order has been made, the

Government refer to the making of such an order in relation to a past

publication against The Sunday Times in the Spycatcher case (loc.

cit.). As to the applicants' main objection to the account of profits

remedy namely, the difficulties in calculating the amount attributable

to the publication in breach of confidence, the Government outline how

such a calculation can be done and argue that the above-cited comments

of Mr. Justice Jacobs in the Barrymore case (loc. cit.) demonstrate

that once a breach of confidence is established, the courts would have

scant sympathy for any argument against an award of an account of

profits based on difficulties of calculation.

     Finally, the Government stress the particular facts of this case

and, in particular, the compelling case made out by the applicants in

their statement of claim dated 29 June 1995 that the published

information of which the applicants complain emanated from a breach of

confidence from those former friends. Accordingly, in law, in practice

and on the facts of the applicants' cases, the remedy of an action in

breach of confidence against, inter alia, the relevant newspapers was

accessible to the applicants, was capable of providing redress for

their complaints, offered reasonable prospects of success and was an

effective remedy which should have been exhausted by them in order to

fulfil the requirements of Article 26 (Art. 26) of the Convention.

     The applicants submit that the breach of confidence action is in

law and practice an ineffective remedy for the invasion of an

individual's private life by the media.

     In the first place, and as regards the nature of the information

disclosed, the applicants agree that the information published on

2 April 1995 was confidential. However, from then on it was in the

public domain and its re-publication on 3 April 1995 was not actionable

as a breach of confidence. The Barrymore case (loc. cit.) is

distinguishable as future instalments disclosing further private

matters had been envisaged, with the consequence that an injunction

relating to future publications was both relevant and effective for

that plaintiff.

     Secondly, the applicants consider the second element of the

action (the circumstances importing an obligation of confidence) to be

the most problematic. They submit that it must be shown that the

relevant newspaper had been put on notice prior to publication that the

disclosure amounted to a breach of a duty of confidence owed by the

source to the subject of the information. Accordingly, the applicants

would have had to prove that the newspapers had the requisite notice

both of the friends' duty of confidence and of their breach of that

duty. Moreover, such a duty will not exist in the majority of cases of

media intrusion and, if it exists, it is difficult to establish. The

task is rendered even more difficult by the protection afforded to

newspapers (by Article 10 (Art. 10) of the Convention and by domestic

law) as regards revealing their sources (Eur. Court HR, Goodwin v. the

United Kingdom judgment of 27 March 1996, Reports of Judgments and

Decisions 1996-II, p. 483) and the fact that information will often be

provided to the newspapers anonymously. If establishing such a duty is

possible, it will often relate only to some of the published material

and, in such circumstances, the applicants submit that, if a plaintiff

cannot prove that the information was unavailable to the defendant by

any other means, the plaintiff's case will fail.

     As to the remedies available for a breach of confidence, the

applicants refer to the impossibility of obtaining an injunction prior

to publication in the absence of prior warning. There is no

jurisdiction to grant an injunction as regards material already

published - so that once the information was published on 2 April 1995,

they had no possibility of restraining the re-publication of the same

material on 3 April 1995.

     In addition, and pursuant to Lord Cairns' Act 1858, the

applicants submit that damages cannot be obtained in addition to an

injunction but only in lieu of an injunction. Furthermore, if an

injunction could not have been granted (and it could not have been

granted in relation to prior publications), damages cannot be awarded

(Sir Robert Megarry VC, in Malone v. Metropolitan Police Commissioner,

loc. cit. and Lord Goff in the Spycatcher case, loc. cit., p. 286). In

any event, their own personal distress (to which the damages would have

to relate) falls outside a category of loss for which, in the absence

of a special type of contract, damages can be awarded under common law.

As to an order of an account of profits, the applicants emphasise the

major evidential difficulties associated with proving to a court that

the inclusion of the confidential information in a newspaper containing

many other articles directly led to an identifiable and calculable

profit which could be awarded to a plaintiff. They submit that there

is no reported case of an award of an account of profits against a

newspaper by reason of the publication of confidential material.

     The second applicant emphasises the distinct nature of her

complaints from those of the first applicant. She complains only about

the taking, distribution and publication of the photograph; in view of

the nature of the disclosures, she was more immediately affected by the

matters complained of than the first applicant; and, since she was the

sister-in-law of the late Princess of Wales rather than her brother,

her private affairs are of even less public interest than those of the

first applicant. She points out that, even if Laws J's obiter dicta

were the law, the photograph in itself did not show a "private act",

the second applicant having been simply walking in the garden. No duty

of confidence can be established in this respect - contrary to the

position in the Shelley Films Ltd case (loc. cit.), the photographer

was in a public place; he was there unknown to and uninvited by the

applicant; no privilege was given to the photographer which he had

abused; he could have been acting on a tip-off; and there is no

evidence to show that the photographer had any idea from where the tip-

off came. Accordingly, the publication of the photograph falls

completely outside any breach of confidence remedy.

     Moreover, the second applicant argues that the reliance by the

Government on the above-quoted extract from the Hellewell case does not

support in any way the proposition that the law of confidence provides

a remedy as regards the relevant photographs. Laws J's comments are

accepted by the Government to be obiter dicta. There is no legal

authority in Laws J's favour, no subsequent judicial support and

overwhelming authority against him (Bernstein v. Skyviews loc. cit. and

Kaye and Robertson, loc. cit.);  moreover, this latter judgment was

binding on Laws J which would distinguish the Whiteside decision of the

Commission (No. 20357/92, Dec. 7.3.94, D.R. 76-A p. 80). In any event

and even if Laws J's comments could be accepted as covering the

disclosure by a photographer of a photograph to the newspapers, the

actual taking of the photographs and their re-publication on

3 April 1995 would not be actionable.

     Accordingly, the applicants submit that the view which was taken

by the Commission in its Winer decision as regards the uncertainty

attending the extent and scope of the breach of confidence remedy

pertains to date (No. 10871/84, loc. cit. at p. 170). It remains a

vague remedy for which there is no statutory or jurisprudential basis.

It does not constitute a relevant or effective domestic remedy, there

was no other effective remedy for them to exhaust, there is no

uncertainty in this respect requiring resolution by the courts and the

settlement of ineffective proceedings against former friends does not

alter this position. Accordingly, the complaints should not, in the

applicants' view, be declared inadmissible on grounds of non-exhaustion

of domestic remedies.

     The Commission recalls that Article 26 (Art. 26) of the

Convention reflects the position that States are dispensed from

answering before an international body for their acts before they have

had an opportunity to put matters right through their own legal system.

In this regard, the provisions of Article 26 (Art. 26) represent an

important aspect of the principle that the machinery of protection

established by the Convention is subsidiary to the national systems

safeguarding human rights (Eur. Court HR, Akdivar v. Turkey judgment

of 16 September 1996, Reports 1996-IV, No. 15, p. 15, para. 65).

     As to the requirements of Article 26 (Art. 26) of the Convention,

the Commission recalls that the applicants are only required to exhaust

such remedies which relate to the breaches of the Convention alleged

and which provide effective and sufficient redress. The applicants do

not need to exercise a remedy which, although theoretically of a nature

to constitute a remedy, does not in reality offer any chance of

redressing the alleged breach (No. 9248/81, Dec. 10.10.83, D.R. 34,

p. 78). Accordingly, the Government must establish that the remedy in

question was accessible, was one capable of providing redress in

respect of the applicants' complaints and offered reasonable prospects

of success. Once this burden has been discharged, it falls to the

applicants to establish that the remedy advanced by the Government was,

inter alia, for some reason inadequate and ineffective or that there

were special circumstances absolving them from the requirement of

exhaustion of domestic remedies (Eur. Court HR, Akdivar v. Turkey

judgment, loc. cit., p. 16, para. 68). It has not been argued and the

Commission does not consider that the applications give rise to any

special circumstances which would absolve the applicants from

exhausting domestic remedies.

     Moreover, where there is doubt as to the prospects of success in

a particular case it should be submitted to the domestic courts for

resolution. This is particularly so in a common law system since, where

the courts extend and develop principles through case-law, it is

generally incumbent on an aggrieved individual to allow the domestic

courts the opportunity to develop existing rights by way of

interpretation (No. 20357/92, Dec. 7.3.94, D.R. 76-A, p. 80, at p. 88).

     In the present cases, the applicants considered the greater part

of the information published on 2 April 1995 to be of a private and

confidential nature. The first main area of dispute between the parties

relates to the second essential element of the breach of confidence

remedy namely, "the circumstances importing a duty of confidence."

However, the Commission considers that the difference between the

positions of the parties as to the circumstances importing such a duty

is, in practical terms, relatively narrow, particularly in light of the

description (which is not specifically challenged by the applicants)

of Lord Goff in the Spycatcher case of the broad circumstances in which

such a duty can be implied. In any event, the Commission considers that

the particular facts of these cases reduce significantly the relevance

of this dispute between the parties - the pleadings in the domestic

proceedings in the present cases demonstrate that these applicants had

a very detailed and strong case pointing to their former friends as the

direct sources of the essential confidential information published on

2 April 1995. It notes, in particular, the successful ploy adopted by

the first applicant (his letter of 1 May 1995) to seek to confirm the

identity of the sources of those disclosures.

     Similarly, the Commission would not find convincing any

suggestion by the applicants that the information published on

2 April 1995 would be found to derive only in part from the breach of

a duty of confidentiality (because, for example, it had been

independently verified by investigation) in light of the strong and

detailed case of the applicants in the domestic proceedings as to the

direct responsibility of their former friends for the relevant

publications.

     The second main area of dispute between the parties relates to

the remedies available on establishing a breach of confidence. The

Commission accepts that the applicants have raised some doubt as to the

availability of damages for breach of confidence where an injunction

could not have been granted. Pursuant to Lord Cairns' Act 1858, it

appears that damages are confined to a case where an injunction could

have been granted but, for some reason, was not and that where

publication has already taken place an injunction could not have been

granted.

     However, the Commission notes the judgment of Lord Goff in the

Spycatcher case (a House of Lords judgment handed down more than ten

years after the Malone case in the High Court). It considers that, at

the very least, the extract quoted above (from p. 286 of that judgment)

shows the developing state of the law relating to the award of damages.

In any event, it is not disputed that an account of profits arises

irrespective of the grant of an injunction. As regards the award of an

account of profits where the publication has already taken place, the

Commission notes that an account of profits was ordered against The

Sunday Times in the Spycatcher case in relation to publications which

had already taken place. Moreover, in light of Mr. Justice Jacob's

comments (albeit in the context of breach of copyright) in the

Barrymore case (loc. cit.), the award of an account of profits in the

Spycatcher case where the relevant articles were published along with

numerous others and in view of the extensive nature of the coverage in

the relevant newspapers on 2 April 1995, the Commission does not

findthe applicants' submissions as regards the difficulties in

calculating the relevant profits sufficient to warrant a conclusion as

to the ineffective nature in Convention terms of an order of an account

of profits.

     Moreover, the Commission has contrasted the applicants'

submissions herein as regards the remedies available on establishing

a breach of confidence with the broad terms of the consent order of

4 June 1995. It also contrasts those submissions of the applicants with

their claims in the statement of claim for an injunction and damages

(including aggravated and/or exemplary damages for breach of confidence

based, inter alia, on the "great personal distress" caused to the

plaintiffs, the consequent strain on their relationship and the effect

on the second applicant's treatment) or, in the alternative, an account

of profits.

     It is not disputed that the lack of prior notice of publication

will necessarily limit the possibility of obtaining a re-publication

injunction. However, it is equally not disputed that an injunction

could have been granted to prevent further disclosures which had been

found to be in breach of confidence. As to re-publication of the same

information on 3 April 1995, the Commission considers that an

injunction to restrain publication of further information would have

had, at least, a deterrent effect on such re-publication by any

newspapers on notice of that injunction.

     Furthermore, and as regards the second applicant's complaint

which she emphasises relates only to the photograph, the Commission

considers it questionable whether the meaning of the photograph

together with the identity of the subject and venue would have been

understood from the photograph standing alone without at least a

caption. In addition, the Commission notes that the Shelley Films Ltd

case (loc. cit.) clearly suggests that photographs can of themselves

form the basis of a breach of confidence action and, in view of the

clearly clandestine manner in which the photograph of the second

applicant was taken, the Commission does not consider that the Shelley

Films Ltd case is as clearly distinguishable on its facts as is

submitted by the applicants. In any event, the Commission considers

that its comments above on the action of breach of confidence apply

equally to the photograph - in the context of exhaustion of domestic

remedies, it is sufficient to note that the second applicant could have

(and did in the domestic proceedings) take the breach of confidence

action in relation to the photograph together with the accompanying

captions and articles.

     Finally, the Commission recalls the view expressed in the Winer

case (No. 10871/84, Dec. 10.7.86, D.R. 48, p. 158, at p. 170) that the

failure to take a breach of confidence action did not constitute a

failure to exhaust domestic remedies in view of the uncertainty as to

the precise scope and extent of that remedy. The Commission notes that,

contrary to the position in the Winer case, the majority of the

submissions in the present cases, both written and oral, focused on the

scope and extent of that remedy. Based for the most part on judicial

authorities dated after the Winer case (the more relevant of which are

cited above and which include an important House of Lords judgment of

1990), the parties in the present cases were in a position to describe

in detail the essential elements and application in practice of the

breach of confidence remedy. Indeed, the Commission considers the

extensive and detailed nature of the submissions, of itself, indicates

that there has been significant clarification of the scope and extent

of a breach of confidence action.

     The Commission therefore considers that the parties' submissions

in the present cases do not demonstrate the same level of uncertainty

as to the remedy of breach of confidence which prevailed at the time

of the Winer decision of the Commission, the domestic courts having

extended and developed certain relevant principles through their case-

law by interpretation (No. 20357/92, Dec. 7.3.94, loc. cit.).

     Accordingly, the Commission considers that the parties'

submissions indicate that the remedy of breach of confidence (against

the newspapers and their sources) was available to the applicants and

that the applicants have not demonstrated that it was insufficient or

ineffective in the circumstances of their cases. It considers that,

insofar as relevant doubts remain concerning the financial awards to

be made following a finding of a breach of confidence, they are not

such as to warrant a conclusion that the breach of confidence action

is ineffective or insufficient but rather a conclusion that the matter

should be put to the domestic courts for consideration in order to

allow those courts, through the common law system in the United

Kingdom, the opportunity to develop existing rights by way of

interpretation.

     In such circumstances, the Commission considers that the

applicants' complaints under Article 8 (Art. 8) of the Convention are

inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention on

the basis that the applicants have not exhausted domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention.

2.   Article 13 (Art. 13) of the Convention provides as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     The Commission notes that it has rejected the applicants'

substantive complaints under Article 8 (Art. 8) of the Convention on

the basis that they have failed to comply with the exhaustion of

domestic remedies requirement under Article 26 (Art. 26) of the

Convention. In such circumstances, the Commission finds their

complaints under Article 13 (Art. 13) of the Convention must be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE

     M. DE SALVIA                            S. TRECHSEL

       Secretary                              President

   to the Commission                      of the Commission

 

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