Privacy and the Princess: Publication of Information about Settlement Offers – Transparency Project Reporting Watch

17 12 2017

Once upon a time, His Royal Highness Louis Xavier Marie Guillauime, Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma married Tessy Antony, now Her Royal Highness Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma. Unfortunately, they did not live happily ever after, as, after 11 years of marriage and two children, they are now divorcing in the High Court in London.

We’re interested in this because of a recent decision by Mr Justice MacDonald on what can be published about this case ([2017] EWHC 3095 (Fam)).

Princess Tessy has been the subject of some unpleasant media reports. One particular article in a Luxembourg magazine referred to her as ‘the daughter of a roofer and a housewife’ who should ‘be brought back down to earth and reminded of where she comes from’. As Mr Justice MacDonald writes in his judgment, ‘the wife asserts that this coverage has brutally, unjustly and unfairly traduced her character and reputation’ and ‘suggests she is a gold digger and married for title and money’.

In order to rebut these allegations, the wife wanted to provide information to the media about the terms of a financial settlement offer she made to her husband and about ownership of the family home. She argued that she was free to deal with her own information as she wanted, subject to the law on confidentiality and privacy. She argued that Article 10 (freedom of expression) of the European Convention on Human Rights, part of our English law courtesy of the Human Rights Act 1998, was relevant, whereas Article 8 (right to private and family life) was not relevant because the information she wanted to release was not sufficiently private.

Although he agreed that the media treatment of his wife had been a ‘personal attack’ on her, and agreed that she was free to ‘respond to negative stories in the media by setting out her personal motivations and feelings’, Prince Louis sought an order restricting the media from publishing information about the parties’ financial arrangements. He argued that ‘it would be entirely inappropriate for personal and sensitive information dealing with his personal financial affairs, living arrangements, and lifestyle to be published, and that the privacy rights of third parties were also engaged and needed to be protected. He also noted that negotiation would become impossible if the parties’ offers and concessions were ‘laundered in the media’. He relied on a case called Clibbery v Allen ([2002] Fam 261) in which the Court of Appeal held that where financial information had to be disclosed in family proceedings there was an implied undertaking (promise) by the parties to keep that information confidential. The purpose of this undertaking was to protect the administration of justice.

The relevant law

Mr Justice MacDonald, therefore, had to decide whether to grant a reporting restriction order and, if so, on what terms. He summarised the relevant law as follows:

  • Under the Family Procedure Rule 27.10, financial remedy proceedings are (usually) held in private, but accredited members of the media can be present unless specifically excluded.
  • The hearing of a case in private does not necessarily prohibit the publication of information about the proceedings or given in the proceedings (This principle comes from Clibbery v Allen).
  • In a case called Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 (available on BAILII here) the House of Lords decided that the court can control publication of information by considering the different rights under the European Convention on Human Rights. Different rights can be engaged and where they are in conflict, the court must focus on comparing the importance of each in the individual case. The justifications for interfering or restricting each right must be taken into account and the court must ensure that its decision is a proportionate interference in any rights. Here, the court needed to weigh up competing rights under Article 6 (everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law), Art 8 (right to private and family life) and Article 10 (freedom of expression).
  • The court must bear in mind the extent to which the information is already in the public domain or the extent to which it would be in the public interest for the material to be published. However, quoting the European Court of Human Rights in Couderc v France (on BAILII here) ‘articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society’. (You could summarise this argument as ‘what’s interesting to the public is not the same as what is in the public interest, i.e. benefit.)
  • There have been previous cases where the court has released information to correct misreporting or address false narratives, and this also assists a party in securing their Art 6 and Art 8 rights.
  • The fact that there is an implied undertaking of confidentiality does not prevent the court from weighing up these human rights arguments. It is a factor to be placed in the scales when looking at Article 8.

The decision

Mr Justice MacDonald decided that there should be a reporting restriction order that prevents Princess Tessy from publishing information about the family home and the open settlement offer she made. The order also restricted the publication of information about the children, as both parties had agreed that.

The reasons for the decision

Mr Justice MacDonald found that while it is unclear whether the bare details of a settlement offer would breach the implied undertaking, of confidentiality, Article 8 was relevant to the case, and was a ‘weighty factor’ because privacy was important in ensuring the parties could negotiate proceedings effectively, without external influences derailing the ‘delicate process of compromise’. Publication of the settlement offer would breach the Article 8 rights of the parties and their children. Any interference in the right must be ‘necessary’ and proportionate. The principle of open justice is important. It is not in the public interest for the financial information or information about the family home to be published. The order sought by the husband would allow the media to report in general terms the fact that there were financial remedy proceedings while protecting the specific details of the parties’ personal financial information.

Article 10 (freedom of expression) is also relevant and important in a democratic society. The wife does not lose her right to freedom of expression by being a party to financial remedy proceedings. Preventing publication of the offer and information about the family home would interfere with her right. Any interference in the right must be ‘necessary’ and proportionate. In this case, interference can be justified. Art 10(2) specifically says that the right can be restricted by law if ‘necessary in a democratic society, … for preventing the disclosure of information received in confidence…’ Moreover, ‘the need to protect the administration of justice has long been recognised as a legitimate reason for derogating from the principle of open justice’. In this case, confidentiality in respect of the negotiations over the financial settlement was very important to the proper administration of justice.

The judge concluded:

The Art 8 right to respect for private life outweighs the Art 10 rights engaged in this case. In my judgment, the need to protect the proper administration of justice by ensuring the confidentiality of the process of negotiation intrinsic to financial remedy proceedings and to the way the court seeks to do justice to the parties outweighs the need for the wife to exercise her right to freedom of expression by publishing the terms of her open offer and information concerning the family home in the press to redress attacks on her reputation. Within this context, it is not only the bare terms of the wife’s open offer that comprises information relevant to the conduct of negotiations, but so too the information concerning the matrimonial home.

…In my judgment, the order I intend to make is a proportionate response to the necessity of protecting the proper administration of justice in this case.

He therefore made a reporting restriction order, which prevents the publication of specific information listed in the order.

 

This post originally appeared on the Transparency Project Blog and is reproduced with permission and thanks

As the case is subject to a specific reporting restriction order, a copy of which can be found at the end of the judgment, please ensure that comments on this piece comply with the order. The order binds all persons and companies who know that the order has been made. As you’ve read this article, that now includes you.

The judgment and order are here


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18 12 2017
daveyone1

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