On 16 May 2014 judgment was handed down in Hannon v NGN and Dufour v NGN ( EWHC 1580 (Ch)), cases which arise from Operation Elveden, the police investigation into corrupt payments by journalists to public officials. The cases are significant not only because they are the vanguard of the civil claims likely to arise from this investigation, but also because of the extent to which the court is being invited to consider damage to reputation within a claim for infringement of privacy rights under Article 8 of the European Convention on Human Rights. The judgment was in the application of News Group Newspapers Ltd (“NGN”) to strike-out the claims.
The basis of the application was that the claims should have brought in defamation and therefore should be statute barred or struck-out as an abuse of process. NGN also argued that the privacy claims were flawed as there was no reasonable expectation of privacy in the circumstances of these cases and that damages would be nominal in any event.
Hannon and Dafour were each notified by the police that information relating to their arrests may have been passed to NGN journalists by a police officer, in return for payment. In Mr Dufour’s case, an article was published by the Sun which gave a sensational account of Mr Dufour’s otherwise discreet arrest following the mistaken belief that his blood-alcohol level exceeded the legal limits for a pilot. Ms Hannon’s case also arises from circumstances involving alcohol and aircraft. Once again, an account of her arrest appeared in the Sun. Ms Hannon was one of three individuals arrested following a flight from Bangalore, but unlike the other two she was never charged.
The damages claims in both cases are similar, with claims for: humiliation, distress, anxiety and damage to reputation. Mr Justice Mann’s judgment sets out what a high hurdle NGN had to overcome in their application. They had to establish that, even if the facts as set out in the claims were all true, the claims are unarguable as a matter law or an abuse. NGN’s arguments failed. Not only did the Judge reject the argument that the “nub” of the claims were only concerned with reputation, importantly, he also stated that he considered the argument that damage to reputation cannot be the subject of a privacy claim, on the material before him, was not made out.
The following paragraphs are instructive:
” I have come to the conclusion that .. [Counsel for NGN] has not established the accuracy of his central proposition (that reputation can only be protected in a defamation claim and not in the claims made in these actions) with sufficient clarity, and that such an important determination is not appropriate in an application of this sort at this stage of the action. Indeed, I think that if I had to decide the point on the material shown to me I would probably be more likely to decide it is wrong, but since it is sufficient for present purposes merely to decide that I cannot say it is right then I will not go that far .
“[NGN] relies on various cases, but before turning to them I deal with the point of principle. I am not satisfied that as a matter of principle it is necessary or appropriate, or even in some cases practically possible, to draw a hard line between the element of privacy or confidence claims which go into what might be called the realms of reputation,and other elements. Take the case of the public disclosure of medical records of a socially embarrassing but historic sexual medical condition affecting a prominent person,in circumstances in which it would never have become known absent a clear invasion of privacy (and assuming no public interest justification or other justification to be available). The effect of that disclosure will cause embarrassment, with the victim knowing that the public at large know about a condition which he/she had every reason to suppose would be kept private, and which he/she would have been entitled to have kept private. There will be some damage to his/her reputation, but that sort of damage is part of the spectrum of public attitudes which the victim was entitled to have been protected from in the first place. Defamation may well not give a remedy for that part of the spectrum because of the availability of justification. It is not clear to me why, as a matter of principle, damage to reputation of this sort should not be within the sort of thing that privacy rights should protect against. A conclusion about that would depend on a close analysis of the new and developing privacy rights, and their interaction with defamation. The first part of that exercise would require a consideration of the jurisprudence as it has been developed so far. That exercise was not conducted in the present case. I was not shown how the authorities have developed the nature of the right. I am not complaining about that – I had quite enough authorities to contend with without them – but the exercise must involve that. When that is set out it becomes clearer why an application of this sort is not the occasion to embark on that exercise.” 
The judgment contains the Judge’s reasons for rejecting each of the cases put to him by NGN as supporting NGN’s contention that reputation cannot be the subject of a privacy claim. Most of the cases that have developed privacy law in this jurisdiction are considered and Mr Justice Mann is sensitive to the fact that the point is likely to be of significant importance in this area of law. The argument can be raised again at trial, but NGN are clearly faced with an uphill battle following this judgment.
Although the arguments about the convergence of privacy rights and reputation will be of most interest to defamation and privacy lawyers on both sides of the fence, NGN’s final argument, that the claims are bound to fail because there was no reasonable expectation of privacy in these two cases, will be of importance to all those being contacted by officers for Operation Elveden.
Mr Justice Mann describes NGN’s argument here as “somewhat striking”. He points out that the general practice of the police is not to identify those who have been arrested and quotes from the Guidance to that effect from the Association of Chief Police Officers and Chapter 3 (para 2.39) of the Leveson Report. He goes on to say:
“Mr White invites me to decide that there can be no such claim because there is no privacy in the fact and circumstances of an arrest. If that is correct then one is tempted to wonder why a journalist would pay for the information (which is what I have to assume for the purposes of the application before me), but it is unnecessary to dwell on that. For present purposes, it is sufficient for me to observe that the key authority relied on by Mr White (AxelSpringer) does not support an absolute right of the press to have, and to publish, the fact of an arrest, and its circumstances. At most it supports a submission that, if the facts justify it, that right exists and the countervailing privacy rights do not. As with a large number of disputes under Convention rights, that is a question of fact and degree, and is highly fact sensitive.” 
Whilst it should be emphasised again that NGN’s arguments were defeated within the challenging context of a strike-out application, Mr Justice Mann’s reasoning is instructive both in terms of the reporting of an arrest and the extent of privacy or Article 8 claims. It is well worth reading and it will make grim reading for NGN. They now face the prospect of trial in both these cases with that judgment fresh in their minds. Furthermore, having faced a mountain of phone hacking cases arising from Operation Weeting, NGN will be wondering whether these two claims are just the tip of the iceberg for claims arising from Operation Elveden.
Dominic Crossley is a Partner at Payne Hicks Beach and specialises in defamation and privacy law.
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