Confidential Information

Case Note: Michael Barrymore v News Group Newspapers Ltd.

Oct 1997

In Michael Barrymore v News Group Newspapers Ltd. [1997] FSR 600, Jacob J considered when details of the personal life of a well-known personality could be the subject of an obligation of confidence. The judge granted an injunction to restrain the defendant's newspaper and its informant from publishing personal letters and intimate details of the private life of a well-known television personality that the second defendant had obtained through a connection with the first plaintiff.

The action before His Lordship was for breach of confidence and contract only but the judge gave a very salutary warning at page 601 that:

"newspapers which think that they can pay their way out of breach of copyright may find it is more expensive than it is worth to print the material"

The facts were that the second defendant had covenanted with the second plaintiff, a company controlled by the first plaintiff and his wife, "not to disclose to any person, caller or company, or to make use of any confidential business information." The definition of "confidential business information" included personal information about the private life of the first plaintiff. Notwithstanding that agreement the first defendant divulged personal correspondence that had passed between him and the first plaintiff together with details of the first plaintiff's private life to the first defendant with a view to their publication.

The judge was uneasy about relying on the agreement alone as many of the events took place before the parties had entered it, but he thought that there was a strongly arguable case that those matters were confidential. He arrived at that conclusion first on the common sense assumption that those who enter a personal relationship do not expect the details of that relationship to be published in the press and, secondly, on the authority of Stephens v Avery [1988] 1 Ch 449. Counsel for the newspaper attempted to distinguish Stephens v Avery on the ground that there was an express obligation of confidence in that case. The judge regarded that as a distinction without a difference and observed that "when people kiss and later one of them tells, that second person is almost certainly breaking a confidential arrangement".