HomeInsightsHigh Court awards damages for misuse of private information in “kiss and tell” case

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In 2012 the claimant, Gareth Bull, and his then wife, Catherine Bull, won approximately £41 million on the National Lottery. Their win was the subject of considerable publicity. Mr Bull bought a villa in Tenerife, where at the time the defendant, Donna Desporte, ran a bar. Mr Bull separated from his wife in or around 2016 and began a sexual relationship with Ms Desporte, which continued into 2017.

Following the ending of the relationship, Ms Desporte wrote and published a book entitled Google Me No Lies. The book appeared first as an Amazon e-book and then in hardcopy form. It was first published in November 2017 and there were several subsequent editions. The title page bore a photograph of Mr Bull and Ms Desporte and was captioned: “The True Incredible Heartbreaking Amazing Story of a Survivor Featuring the Relationship with £41 Million Lottery Millionaire Gareth Bull”.

Mr Bull issued proceedings against Ms Desporte for copyright infringement and misuse of private information. The misuse of private information claim arose out of 36 passages in the book, which he alleged included private information about him and/or his family. The passages fell into four categories as follows:

  1. details of the sexual relationship between the couple;
  2. Mr Bull’s relationship with, and divorce from, his former wife Catherine Bull;
  3. Mr Bull’s children; and
  4. the physical health of Mr Bull.

The copyright claim related to the inclusion in the book of four photographs said by Mr Bull to have been taken by him (in which he retained the copyright) and sent to Ms Desporte privately during their relationship.

Mr Bull sought a permanent injunction restraining publication of the information in the 36 passages and the photographs, as well as damages and other relief. He did not seek to prevent Ms Desporte from publishing the book at all, but to prevent her from publishing the identified passages and from publishing the photographs.

Mr Justice Knowles said that there was no doubt that Mr Bull had a reasonable expectation of privacy under Article 8 of the EHRC (respect for private life) in relation to all of the passages falling within category a). Whether they were true or false, they contained deeply personal and intimate information concerning Mr Bull’s sex life with Ms Desporte. As for categories b) and c), Knowles J said that they related to aspects of family life and, as such also fell within Article 8 and carried a reasonable expectation of privacy. A reasonable person of ordinary sensibilities placed in the same position as Mr Bull would expect that such information, which concerned his separation and break-up from his wife of many years, and the mother of his children, and which was confided to Ms Desporte confidentially, would remain private. Category d) was also clearly covered by Article 8.

On the evidence, Knowles J rejected Ms Desporte’s arguments that Mr Bull had consented to publication so that his reasonable expectation of privacy had been lost. A defence of consent required there to have been informed consent to the publication and the evidence was that Mr Bull did not know what Ms Desporte was going to publish and did not give blanket consent to the publication of any of his private information. Ms Desporte had informed Mr Bull of an intention to publish a book but had misled him, Knowles J found, as to what was in the book by saying that it was only a “little bit” about Mr Bull when, in fact, Mr Bull featured prominently. The fact that Mr Bull had not made an application for pre-action disclosure before publication (which he had been advised would very likely not succeed) did not amount to consent to publication.

Knowles J also rejected Ms Desporte’s defence that the information in question was already in the public domain by the time of publication due to the publication of an article in The Mirror newspaper, since the article did not actually include the information about which Mr Bull was complaining. The information in question had not, therefore, lost its private character.

Considering the balancing exercise between Article 10 (freedom of expression) and Article 8, Knowles J noted first that the private information in question ranked highly in the hierarch of protection under Article 8. The impact on Mr Bull’s children of the revelations about their father’s sex life at a time when he was still married to their mother was also something to which great weight should be attached, he said.

Overall, Knowle J found that publication of the information represented a serious infringement of Mr Bull’s Article 8 rights and those of his ex-wife and children due to the nature of the information in question and the level of detail provided. The evidence showed that even its limited publication to date had caused serious distress and harm to Mr Bull and at least one of his children.

As for the public interest in publishing the information and the restriction on Ms Desporte’s Article 10 rights, Knowles J noted that there was no legally cognisable public interest in Ms Desporte writing about her sexual relationship with Mr Bull. That was made expressly clear in PJS v News Group Newspapers [2016] AC 1081. Therefore, any public interest in publishing must, in the absence of any other legally recognised public interest, be disregarded in any balancing exercise. As the Court of Appeal said in PJS, “‘kiss and tell’ stories which do no more than satisfy readers’ curiosity about the private lives of other persons, however well known to the public, do not serve any legally recognised public interest”.

Ms Desporte also relied on a supposed need to “set the record straight” about what happened between her and Mr Bull and to rebut defamatory allegations she said had been made against her. Knowle J found that neither arguments provided any basis for finding a legally cognisable public interest that required publication of the information. Ms Desporte complained that Mr Bull had wrongly portrayed their relationship as being solely sexual whereas there had also been a romantic element. However, Mr Bull said this during the course of the claim and not pre-publication. Therefore, at the time the book was published there was no record to straighten; the argument failed on the facts.

Knowle J also found that the defamatory allegations argument also failed on the facts. He found that Mr Bull did not make false statements about Ms Desporte or portray her in the way that she believed she had been portrayed. In addition, Mr Bull was not trying to prevent Ms Desporte from writing a book at all. He accepted (rightly in Knowle J’s view) that he could not prevent publication of a book asserting that they had had a sexual relationship. In this case the relationship had been conducted openly and a court would therefore be unlikely to hold that the mere fact of it attracted an expectation of privacy (as opposed to the intimate details of what went on in private during the relationship). What Mr Bull was seeking to do was to prevent Ms Desporte from writing a book that included intimate, private and personal information that violated the Article 8 rights of him and his ex-wife and children.

Therefore, Knowle J found that the balancing exercise plainly came down in Mr Bull’s favour. Publication of the information had caused and would cause a violation of his and his family’s Article 8 rights with serious harm and distress as a consequence. The nature of the rights involved were particularly worthy of protection, he said, and there was very little, or no, public interest in the publication of the information in question. In other words, it would be a more disproportionate infringement of Mr Bull’s (and his family’s) Article 8 rights to allow publication than it would be to restrict Ms Desporte’s right to publish under Article 10. Mr Bull’s claim for misuse of private information therefore succeeded. Knowle J assessed damages at £10,000 and aggravated damages at £2,500. He also awarded a permanent injunction to restrain further publication.

As for the copyright claim, Knowle J found as fact that Mr Bull had taken the photographs in question and had sent them to Ms Desporte in circumstances that did not amount to a grant by him of permission to publish them to the world. The claim for copyright infringement therefore succeeded. Given the modest nature of the infringement and in the absence of any evidence of commercial value in the photographs, Knowle J assessed damages at £50. (Gareth Bull v Donna Desporte [2019] EWHC 1650 (QB) (26 June 2019) — to read the judgment in full, click here).

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