It been reported in Guardian Media that Brad Pitt and Angelina Jolie are to sue the “News of the World” over a false front page story that they were splitting up and dividing their substantial joint wealth. 

The original story is no longer on the “News of the World” website but reports of it in other papers are still on line, for example, the “Daily Mail” reported the next day that the “News of the World” had said that the couple had signed a “£205 million split deal and will share joint custody of six children”.

The interesting question is what legal remedy the couple might have.  It is not defamatory to say of a couple that they have “split up” and, it might be thought that the article does not contain any private or confidential information.  The complaint is about inaccuracy and, some might be thought, that the obvious remedy for that was a regulatory one: in the case of the English press a complaint to the PCC.  However, it appears that (in common with most media lawyers, see Jonathan Coad’s recent post) those acting for Mr Pitt and Ms Jolie had no faith in this body.

As a result, it appears that they have brought an action for what is often call “false privacy”: disclosing private information which, although in fact untrue remains private.  The actionability of such publications is well established in French privacy law – going back to the case of Bardot v Ici Paris (TGI Paris, 1st Chamber, 28 March 1984) where the actress recovered damages in respect of a false story of a suicide attempt.   In the leading case of McKennitt v Ash ([2006] EWCA Civ 1714; [2008] QB 73) the Court of Appeal confirmed that the English law took a similar approach.  As Longmore LJ said in an oft quoted passage:

“The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry” [86].

In the subsequent case of P v Quigley [2008] EWHC 1051 (QB) Eady J granted a permanent privacy injunction to restrain the publication of a “novella” on the Internet, “in which P and Q would appear, thinly disguised, as partaking in various unsavoury and fictitious sexual activities”.  In Beckham v Bauer the claimant sued over the publication a story concerning fictitious telephone calls and text messages passing between her and her husband.   The case was settled before trial but it was not disputed that there was a potentially valid “false privacy” claim.

The doctrine of “false privacy” has not been the subject of any extended analysis in the courts – although concern has been expressed about the potential overlap with defamation cases (see, most recently, Terry v Persons Unknown [2010] EWHC 119 (QB), [96]).  This last issue does not seem to arise in the case of Mr Pitt and Ms Jolie.

Information concerning the breakdown of a relationship, the financial settlement and the arrangements for custody of the children is plainly private.  This is means that a false story to that effect is also private.   A “false privacy” claim appears to be the only route which the English legal and regulatory system provides for correcting false media stories.