Lady Archer’s victory in the High Court last week is significant, primarily due to the award of damages. Her former personal assistant was ordered to pay £2,500 damages for breach of confidence and injury to her feelings after she disclosed confidential details of her employment in the Archer household to the media.
Lady Archer’s claim for an injunction to prevent Jane Williams from disclosing confidential details of her employment, and for damages for breach of confidence and injury to her feelings, arose out of an article published in a Sunday newspaper that alleged that Lady Archer had undergone cosmetic surgery. Although she had not specifically instructed any newspaper to publish an article, Williams had held discussions with representatives of various newspapers for the purpose of publishing an account of her employment with Lady Archer, and Mr Justice Jackson held that this disclosure, which had given rise to the article complained of, had been in clear breach of the express confidentiality provisions in her contract of employment.
The judge held that, even in the absence of an express provision to that effect, Lady Archer was entitled to an injunction on the basis that any reasonable person in Williams’s position would have realised the information was being obtained in circumstances of confidence. This gave rise to an implied obligation not to disseminate that information further. There was also no overriding public interest in disclosure of the information, which included information that is regarded as sensitive personal data for the purposes of the Data Protection Act, and for which greater legal protection is afforded than more routine information.
This line of reasoning dates back to the case of Coco v AN Clark Engineers in 1969, the principles of which have been reiterated in the Douglas and Zeta-Jones versus Hello! litigation. In the latest decision in that case, Mr Justice Lindsay was of the view that images of the Douglas wedding were imparted to those present, including the photographer of the unauthorised pictures that came to be published in Hello! magazine, in circumstances importing an obligation of confidence. It was held that the photographer knew, or at the very least ought to have known, that the claimants reasonably expected the private character of the event and photographic representation of it to be protected.
In light of the fact that Williams’s employment contract contained an express provision preventing disclosure of information obtained during the course of her employment, and that the information disclosed included details of Lady Archer’s medical history, it might be expected that damages in excess of £2,500 would have been awarded.
Had the article about which the complaint was made contained an untrue imputation against Lady Archer’s reputation, for which she might successfully have sued for defamation, damages would have been assessed in a different manner.
General damages for defamation serve to act as consolation to the claimant for the distress suffered from the publication of the statement; to repair the harm to the claimant’s reputation; and as a vindication of that reputation. In the case of claims for damages for injury to feelings, such as this, only the first of these purposes is served by an award for damages. The award is given for injury to feelings only. In arriving at the award of £2,500, the Judge considered the principles outlined in Cornelius versus de Taranto (2001), which concerned the disclosure of a medico-legal report by a doctor to the claimant’s GP and to a consultant psychiatrist, which became irretrievably part of the claimant’s NHS records. In that case it was held that such damages would be strictly limited to injury to feelings caused by the breach of confidence and that in all the circumstances, damages would be modest.
The material factors were the nature and detail of the confidential material disclosed, the character of the recipients of the disclosure and the extent of disclosure, together with the physiological make-up of the claimant as known to the defendant. It remains to be seen whether the Court will apply the same test when assessing any damages due to Michael Douglas and Catherine Zeta-Jones.
James Damon is a solicitor in the media and entertainment department at Charles Russell