The media coverage of the Diamond Jubilee gives rise to some interesting issues – it will be interesting to see the indispensable “Journalisted” weekly analysis of press coverage.  We thought that for the Inforrm Jubilee celebration we would take the opportunity to remind our readers of some interesting privacy law cases featuring the royal family.

The reigning monarch cannot, of course, sue or be sued personally in the courts (except, perhaps, using the “petition of right procedure“).  The same does not apply, however, to the members of the royal family (an expression which, in fact, has no precise legal meaning).  The monarch’s closest relatives –  his or her s spouse and the heir apparent – can both sue and be sued in the English courts.  Actions by individuals occupying these positions have made important contributions to English media law.

Contrary to what sometimes seems to have been the assumption of police officers investigating the activities of Mr Glenn Mulcaire there is no bar on members of the royal family (with the exception of the reigning monarch) giving evidence in the civil or criminal courts. In the late nineteenth century, Edward, Prince of Wales (the future King Edward VII) gave evidence in the courts on two occasions.

First, there was the notorious Mordaunt divorce case.  In 1869, Sir Charles Mordaunt MP threatened to name the Prince as co-respondent in his divorce suit. Ultimately, he did not do so but the Prince was called as a witness in the case in 1870.  He denied impropriety.  Sir Charles ultimately got his divorce and Lady Mordaunt spent the rest of her days in an asylum.

Some years later the Prince gave evidence in a slander case arising out of the Royal Baccarat scandal. Sir William Gordon-Cumming was accused of cheating at baccarat, during card games at which the Prince was present.  Sir William denied any wrong-doing but agreed to sign a pledge that he would never play cards again in exchange for an agreement that the matter would be kept secret. However, the story became common knowledge and Sir William was ostracized by society. As a result, he sued his accusers for slander.  The Prince attended the trial, sitting in a chair to the left of the trial judge, Lord Coleridge CJ.  He was called as a witness.  There is a contemporary news account of some of the Prince’s evidence in The New York Times (June 3, 1891: The Prince as a Witness; How the Game is Played [PDF]).  The trial ended on 9 June 1891 and the jury deliberated for only ten minutes before finding in favour of the defendants.

There has always been a public appetite for private information about the royal family and, from time to time, its members have resorted to the Queen’s courts to protect their privacy.  We draw attention to four “royal privacy cases”.

One of the earliest “privacy” cases was Wyatt v Wilson in 1820. The Lord Chancellor, Lord Eldon, granted an injunction to restrain the publication of an engraving of George III on his deathbed.  The judge said that

“If one of the late King’s physicians had kept a diary of what he had heard and seen, this Court would not in the King’s lifetime, have permitted him to print or publish it.“

In 1849 the Queen’s consort brought proceedings to restrain the publication of surreptitiously obtained private etchings made by himself and the Queen (Prince Albert v Strange (1848-9) 2 De G & Sm 652).  In granting the injunction, Knight-Bruce V-C said that the threatened publication was

“an intrusion – an unbecoming and unseemly intrusion … offensive to that inbred sense of propriety natural to every man – if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life – into the home (a word hitherto sacred among us)”.

An injunction was granted restraining the Defendant from exhibiting, copying, or in any manner publishing, or parting with, or disposing of any of the etchings in question and from publishing a catalogue of the etchings.  The Vice-Chancellor granted the injunction

“Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known.“

An appeal to the Lord Chancellor (Lord Cottenham) relating to the publication of a catalogue of the etching was dismissed (1849) 1 Mac & G 25). This case was a key development in the modern law of breach of confidence.  In the course of his judgment Lord Cottenham said, in language which would commend itself to Mr Max Mosley

“In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and, to be effectual, it must be immediate“.

More than a century and a half later, Prince Albert’s great great great grandson, Prince Charles, brought an action for breach of confidence and misuse of private information (HRH Prince of Wales v Associated Newspapers [2008] Ch 57).

The case concerned handwritten travel journals recording his views and impressions of overseas visits which had been copied by an employee whose contract of employment included a “confidentiality clause”. The employee gave copies to the “Daily Mail” which published substantial extracts from one of the journals, which related to the Prince’s visit to Hong Kong in 1997 when the colony was handed over to the Republic of China.

Blackburne J granted the Prince summary judgment in relation to the Hong Kong journal and the newspaper’s appeal was dismissed by a Court which included the Lord Chief Justice and the Master of the Rolls.  The House of Lords refused permission to appeal.   The damages claim was ultimately settled.

The Court of Appeal held that

“There is an important public interest in the observance of duties of confidence. Those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential. Before the Human Rights Act came into force the circumstances in which the public interest in publication overrode a duty of confidence were very limited. The issue was whether exceptional circumstances justified disregarding the confidentiality that would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, ‘necessary in a democratic society’. It is a test of proportionality. But a significant element to be weighed in the balance is the importance in a democratic society of upholding duties of confidence that are created between individuals. It is not enough to justify publication that the information in question is a matter of public interest. To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the delivery of the speech in Parliament, there can surely be no doubt that the newspaper would be in breach of duty if it purchased and published the speech” [67].

As a result, the test was whether it was in the public interest that the duty of confidentiality was breached.  Although, as heir to the throne, Prince Charles was an important public figure, he nevertheless had a claim to “his private space”, what Blackburne J described as “the right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest“.

The “Daily Mail” had identified four matters of interest including the nature of lobbying by Prince Charles of elected leaders and the political conduct of the Heir to the Throne.  The Court of Appeal agreed with the judge’s conclusion that the contribution of the published articles to providing information on any of these matters was “minimal” [72].

Finally, there is a “royal case” which had the potential to make new privacy law in the 1990s but which never came on for trial.  This was Princess Diana’s claim against gym owner, Bryce Taylor.  Photographs of the Princess working out on a leg-press machine appeared in the Sunday Mirror and Daily Mirror and were taken by Mr Taylor in his gym with a concealed camera.   Mr Taylor initially defended his actions and the action was listed for trial on 13 February 1996 (having been switch from Court 12 to Court 36 to enable more journalists to be accommodated).

However, the disappointment of privacy lawyers (and the tabloid press) the case was settled on the Wednesday before the trial was due to begin. As the Press Gazette put it at the time

“It was going to be the media trial of the year. Princess Diana was to give evidence in a case against the Mirror Group and a gym owner for taking and publishing sneak pictures of her working out. The Daily Express had predicted that the courtroom battle would have “made the OJ Simpson trial look like a sideshow”.

Much to the disappointment of the press, the case was settled at the 11th hour with apologies from the Mirror Group, gym owner Bryce Taylor and the return of the pictures. There was speculation that a third party had stepped in to pay £500,000 to settle the case“.

The opportunity for development of the law of privacy and photographs was missed.  The decisive development in this area came nearly a decade later in the Court of Human Rights – in Von Hannover v Germany ((2005) 40 EHRR 1) – a case brought by Princess Caroline, a member of the Monégasque Royal Family.

The media appetite for royal stories suggests that the royal family’s contributions to privacy law are likely to continue for some time to come.