Privacy and the Right to Tell Your Own Story: Misuse of Private Information Tort Analysis

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Privacy and the right to tell your own story

N. A. Moreham Faculty of Law, Victoria University of Wellington, Wellington, New Zealand Correspondence nicole.moreham@vuw.ac.nz

Received 17 Mar 2026, Accepted 18 Mar 2026, Published online: 07 Apr 2026

• https://doi.org/10.1080/17577632.2026.2649961

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ABSTRACT

This article examines when and how a person’s desire to tell their own story should affect the application of the English misuse of private information tort. It urges caution in cases where one party is trying to dictate retrospectively the terms on which a shared encounter occurred – especially when there is a significant power imbalance between the parties. The article argues, first, that courts determining reasonable expectations of privacy in respect of a shared experience should consider both parties’ attitude towards it. When it comes to the privacy/freedom-of-expression balancing at stage II, it suggests a defendant’s desire to make limited disclosures to family and friends should almost always prevail. A genuine desire to talk about one’s own shared experience should also help justify disclosures about shared experience to the public at large, at least when there is a wider public interest in the storyand privacy damage is minimised.

KEYWORDS:

• Privacy
• freedom of expression
• shared experience
• limited disclosures
• reasonable expectation of privacy

Introduction

In Campbell v MGN Ltd – the 20th anniversary of which this volume of the Journal of Media Law is celebrating – fashion model, Naomi Campbell, did not invite MGN to photograph her leaving Narcotics Anonymous. Nor did she share the details about her drug-addiction treatment with them. Rather, MGN Ltd was an outsider looking in; it was finding out something Naomi Campbell did not want them to know.

Most groundbreaking privacy decisions follow this pattern. Murray v Big Pictures Ltd (in England and Wales), von Hannover v Germany (in Strasbourg), Hosking v Runting and C v Holland (both in New Zealand) all involved women being photographed in their daily lives by outsiders intruding where they were not invited. Footnote 1 But not all privacy cases are like this. Indeed, for much of its history, the stock-in-trade of the English and Welsh misuse of private information action was claims against defendants who had shared an intimate experience with the claimant. Some of these cases involved a defendant wanting to air their side of a story or to allege that the claimant had harmed them in some way. Footnote 2 More typically, though, they were ‘kiss-and-tells’ – cases in which one party wanted to talk publicly about a shared sexual encounter and the other (usually more powerful) party wanted to stop them. Footnote 3 The problem in these shared-experience cases was not an outsider looking in but divergent views amongst insiders on whether the encounter was private or not. The defendant wanted to publicise it and the claimant resoundingly did not.

This short article argues that a person’s interest in telling their own story needs to be taken into account when courts apply the requirements of the English and Welsh misuse of private information action. Put another way, it examines when and how a claimant’s privacy rights can be curtailed by the fact that they shared a (would-be) private experience with someone else. It looks at this question, first, at stage I of the privacy action, ie when courts are determining whether the claimant had a reasonable expectation of privacy in respect of the information or activity in question. Then, it considers how the other party’s right to share their story, either with select others or the world at large, should be weighed at stage II, i.e. when the claimant’s interests are weighed against the free expression and privacy rights of others. The article argues, first, that the right to make limited disclosures about one’s own experience to family, friends and health professionals should almost always prevail in the privacy/free speech balancing. Then, turning to public disclosures, it suggests that a defendant’s desire to speak publicly about shared experience should carry significant weight in some circumstances – albeit subject to important conditions.

Stage I: Shared experience and the reasonable expectation of privacy

The first question, then, is how a claimant’s reasonable expectation of privacy in respect of an activity might be affected by the fact that they shared it with someone else. As I have argued elsewhere, the reasonable expectation of privacy test is normative and highly contextual – it is essentially ‘a shorthand for saying that, subject to any overriding competing interests, the claimant is entitled to expect his or her privacy to be protected in the circumstances of the case.’ Footnote 4 A wide range of factors can bear on this assessment. These include the non-exhaustive list of considerations identified by the Court of Appeal in Murray v Big Pictures Ltd: the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant, and the circumstances in which and the purposes for which the information came into the hands of the publisher. Footnote 5 All these factors help determine both whether something is private and how serious the privacy interference was. Footnote 6

So, if one party to a sexual encounter wanted to publish explicit photographs of it on the Internet, the intimate nature of the activity, the secluded place at which the activity was happening, and the explicit nature of the material would all weigh in favour of the other party having a (strong) reasonable expectation of privacy in respect of it. Conversely, if the shared experience involved the infliction of harm on the claimant by the defendant, then the nature of the activity and purpose of the intrusion would militate against it. So, the more intimate the nature of the activity, the more secluded the nature of the location, the more gratuitous the intrusion, etc., the more likely a party to a shared experience will meet the reasonable expectation of privacy requirement.

The methodology just outlined is a simple application of the Murray factors to shared experience-type cases. But, it is suggested, this should not be all there is to it. Rather, in shared experience cases, both parties’ attitudes towards the activity in question should be relevant to the reasonable expectation of privacy assessment. This means that the fact that the defendant did not regard the encounter as private should be taken into account. For example, in the absence of any understanding between them, X’s desire to keep a sexual encounter with Y secret should not automatically override Y’s desire to talk about it with her friends. Rather, both X’s and Y’s attitudes toward the encounter should help shape the court’s assessment of X’s reasonable expectations of privacy. Footnote 7 Similarly, if X and Y engaged in a heated political exchange at a dinner party and X wanted Y to keep it to herself, there is no reason why X’s attitude towards it should be entirely determinative. Y’s viewpoint should also be considered when determining what privacy protection X can expect in the circumstances. This point should not be overemphasised. Case law has shown that Y’s viewpoint often will – and should – be overridden. Footnote 8 But as the Court of Appeal said in Hutcheson v News Group Newspapers Ltd, ‘[t]here is an important distinction between the desire to keep information private and invoking the full panoply of the Court’s jurisdiction in order to do so’. Footnote 9 Courts should not be too quick to help people who have trusted too hastily or misjudged a situation to rearrange relations, unilaterally, to their better liking.

These ideas have found some expression in the case law. For example, in Couderc and Hachette Filipacchi Associés v France, the Grand Chamber of the European Court of Human Rights held that the applicant magazine, Paris Match, was entitled to publish the story of a woman, Ms Coste, who had a son with Prince Albert of Monaco – even though the Prince wanted the information to remain private. Footnote 10 As discussed below, the Court acknowledged that Ms Coste had a countervailing right to talk about her own life, Footnote 11 but it also rejected the idea that the Prince’s desire for secrecy made the information private in the first place. It said that although the birth of a child is an event of ‘an intimate nature,’ it does not come solely within the private sphere of those concerned. The fact that it is recorded in public records and establishes a legal parent–child relationship means that it is in the public sphere as well. Footnote 12 It followed that, ‘[a] news report about a birth cannot … be considered, in itself, as a disclosure concerning exclusively the details of the private life of others, intended merely to satisfy the public’s curiosity’. Footnote 13 Similarly, in SKA and PLM v CRH, Tugendhat J observed that it was unlikely the claimant’s paternity of twins conceived in an extramarital affair could remain a secret. Whilst he and the mother might want it, they could not expect secrecy from the many people who were inevitably going to observe the twins’ existence:

It is a normal part of life, and an exercise in freedom in expression that people talk to each other about each other’s lives. The birth of babies is a normal topic of such conversations, and there is no reason why it should not be. Footnote 14

Birth and child rearing obviously have special characteristics; it is very difficult, and usually socially undesirable, for a child to be hidden away. But these cases also lend support to the wider point that a shared enterprise does not automatically become private simply because one of the participants would like it to be so. This point was also driven home in the early privacy/breach of confidence case of A (aka Flitcroft) v B & C. Footnote 15 When determining whether the claimant footballer had a reasonable expectation of privacy in respect of extramarital affairs with two women, Lord Woolf CJ stressed that the women themselves did not regard the encounters as confidential. This made it more difficult for the claimant to establish confidentiality:

although … we would not go so far as to say there can be no confidentiality where one party to a relationship does not want confidentiality, the fact that C and D chose to disclose their relationships to B [the newspaper] does affect A’s right to protection of the information. For the position to be otherwise would not acknowledge C and D’s own right to freedom of expression. Footnote 16

A v B & C would almost certainly be decided differently today. At that point in the privacy action’s development, the reasonable expectation of privacy test was heavily bound up with the norms of breach of confidence (which are more explicitly about the relationship between the parties). Courts have since become more willing to suppress information about extramarital affairs in the absence of a particular public interest. Footnote 17 But the point about the need to consider both parties’ attitudes remains valid. If A had simply assumed, without asking, that C and D would keep the affairs quiet (despite having misled them about his marital status) would it be reasonable for the court retrospectively to impose secrecy on them? Perhaps. But the situation should, at least, give courts pause. A v B & C is typical in that a powerful, well-resourced man was trying to stop two much less powerful people from speaking about their own experience with him. Footnote 18 Courts should not too readily come to such claimants’ assistance.

Stage II and the right to tell your own story

So, at stage I of the privacy action, courts should consider both parties’ attitude to a shared encounter when determining whether a claimant has a reasonable expectation of privacy in respect of it. The defendant’s attitude is also highly relevant at stage II, ie when the claimant’s privacy interests are being weighed against the defendant’s right to freedom of expression. Usually, the scope of a defendant’s freedom-of-expressionright to reveal private material is conterminous with the audience’s legitimate interest in receiving it. Courts will ask if the public has a legitimate interest in knowing about the claimant’s health, sexual activity, or family relations, for example. Footnote 19 But in shared experience cases, individual freedom of expression is also at play. Courts therefore need to consider both the legitimate interests of the public and the defendant’s individual interest in speaking about their own experience.

The importance of this right to tell your own story has been consistently recognised by English courts. For example, in Rhodes v OPO, the Supreme Court dismissed an intentional infliction of emotional harm claim brought against a father (by a representative of his own son) for publishing a detailed account of sexual abuse he, the father, endured as a child. Footnote 20 The Court unanimously held that the appellant had a legitimate interest ‘in telling his story … in the way in which he wishes to tell it’. Footnote 21 It said that, whilst not absolute, ‘[f]reedom to report the truth is a basic right to which the law gives a very high level of protection.. [t]he right to report truth is justification in itself.’ Footnote 22

This individual right to freedom of expression is protected by both Articles 8 and 10 of the European Convention on Human Rights 1950. Footnote 23 In the family law case of Griffiths v Tickle, the Court of Appeal affirmed the general proposition that the right to freedom of expression in Article 10 ‘encompasses a right to speak to others, including the public at large, about the events and experiences of one’s private and family life’ – and that the public, including the media, enjoys a corresponding right to receive the information without interference. Footnote 24 Sharpe P (with whom the other judges agreed) therefore rejected a sitting MP’s appeal against an order authorising publication of family court proceedings which contained details of the domestic abuse he had inflicted on his partner (the MP having argued that disclosure was not in the best interests of their child).

The right to tell your own story is also part of the right to respect for private and family life protected by Article 8. Munby J expressed this eloquently in an oft-cited passage from Re Angela Roddy (a minor):

amongst the rights protected by Article 8 … is the right, as a human being, to share with others – and, if one so chooses, with the world at large – one’s own story, the story of one’s childhood, development and history … It is natural for us to want to talk to others about ourselves and about our lives. It is fundamental to our human condition, to our dignity as human beings, that we should be able to do so … Article 8 thus embraces both the right to maintain one’s privacy and, if this is what one prefers … to share what would otherwise be private with others, indeed, with the world at large. So the right to communicate one’s story to one’s fellow beings is protected not merely by Article 10 but also by Article 8. Footnote 25

Of the three cases just discussed, only Roddy falls into the classic shared-experience pattern that this article is discussing. In Griffiths, the claimant argued that anonymity was necessary to protect his child’s best interests (not his own), and in Rhodes, the claimant (the defendant’s son) had no involvement with the experience in question. The remainder of this section will ask how the right to tell your own story should play out in misuse of private information cases where, as in Roddy, the experiences are shared. Should the courts allow the right of the defendant to tell their own story to override the privacy interests of another participant in it? And if so, when?

Limited disclosures about shared experience

The individual right to tell one’s own story does, and should, carry the greatest weight where the claimant is seeking to make a social or therapeutic disclosure to a limited number of people. It is, firstly, self-evident that defendants must be free to make disclosures about seriously harmful conduct to the police or other appropriate investigatory bodies. Footnote 26 Courts are also, rightly, cautious about preventing privacy defendants from telling people in their private sphere about an experience they have shared with someone else. For example, in CC v AB, Eady J explained that a trial judge was unlikely to award an injunction restraining the defendant, a ‘cuckolded’ husband, from speaking to anyone about his wife’s adulterous relationship with the claimant:

it would not be proportionate … to prevent the defendant, for example discussing his wife’s adultery with a close friend, or members of the family, or (if he needed to do so) with a family doctor, counsellor or social worker, or with his lawyers. Footnote 27

Similar exclusions have been made in cases like Ntuli v Donald, where the Court of Appeal made it clear that an injunction which prevented the appellant from talking about an affair she had with the respondent did not extend to a family member or close friend. Footnote 28 These carve-outs protect important interests. It is widely understood that talking to others can help people let off steam and process significant things that have happened to them. Footnote 29 Self-disclosure also plays an important role in the maintenance of friendship, intimacy and social connection. Footnote 30 It follows that an injunction which prevented a person from discussing an important life experience with a therapist, family member or close friend would interfere significantly with their individual expression, autonomy and ability to maintain authentic, open relationships. People need to be free to discuss their romantic entanglements, relationships and wider social interactions with professionals and those close to them. Footnote 31 Courts should be very cautious about stopping them.

Public disclosures about shared experiences

In some circumstances, this right to tell your own story can extend to disclosures made to the public at large. In Griffiths, the Court of Appeal held that the claimant’s Article 10 right to freedom of expression ‘encompasses a right to speak to others, including the public at large’ Footnote 32 and in Roddy, Munby J said that Article 8 protects the right to share one’s story ‘if one so chooses, with the world at large’. Footnote 33 The claimant in Rhodes was also entitled to ‘tell the world’ about what he had suffered – and there was a corresponding public interest ‘in others being able to listen to his life story in all its searing detail’. Footnote 34

This factor weighed heavily in the balancing of competing interests in Roddy. That case concerned a 16-year-old woman who wanted to tell a tabloid newspaper her story of being forced to give up a baby for adoption when she was 12 years old. As discussed above, Munby J recognised that the woman’s right to tell her own story was protected by both Article 8 and 10; but he also held that those interests needed to be balanced against the privacy rights of the adopted-out child and its young father (the latter of which, the judge accepted, were likely to be compromised even if the father was not named in the publication). Footnote 35 Mundy J held that an injunction which was wide enough to suppress all the information which the father might not want publicised would interfere disproportionately with Roddy’s Article 8 and 10 rights and with the Article 10 rights of the newspaper. Footnote 36 He therefore revoked an order preventing the media from openly publishing Roddy’s story.

The protagonist’s free speech rights were also given significant weight in Adams v Amazon Digital UK Ltd. Footnote 37 In that case, Alegre DHCJ granted summary judgment against a mother who had sued Amazon for distributing a documentary in which her daughter – a professional boxer – discussed the domestic violence that took place in her childhood home. Although significant weight was placed on the fact that the boxer had already discussed the domestic violence in public with the mother’s apparent support, the fact that the mother ‘was an essential part of the [boxer’s] story’ was also important. Footnote 38 Alegre DHCJ linked this consideration to two of the Murray factors which judges can consider at stage I of misuse of private information. She said that:

the nature and purpose of the intrusion and the circumstances in which and purposes for which the information came into the hands of publishers are inextricably linked to [the claimant’s] desire to tell her own story through the documentary. Footnote 39

But the boxer’s right to speak is also clearly relevant to the stage II balancing. Footnote 40 The judge therefore held that even if she had found a reasonable expectation of privacy at stage I, it would have been outweighed by both the public’s interest in hearing the inspiring story of the boxer’s life and the importance of protecting her right to speak. She stressed that the latter is itself in the public interest: the public interest in the boxer’s ‘story of achievement over adversity simply adds weight to the defendant’s Article 10 rights in providing an opportunity for [her] to tell her story’. Footnote 41 Any residual privacy rights of the mother were therefore ‘far outweighed’ by the rights of the defendant and the boxer to tell the story of her life. Footnote 42 Finally, as foreshadowed above, the Grand Chamber in Couderc emphasised the right of the mother of the Crown Prince of Monaco’s son to tell her own story about the child and her relationship with him in the media. Whilst it acknowledged that the claim had been brought by the publishers, not Ms Coste herself, the Court said it ‘cannot ignore the fact that the disputed article was a means of expression for the interviewee and her son’. Footnote 43 The story, it said, contained details about Ms Coste’s pregnancy, her own feelings, the birth of her son, health problems suffered by the child and their life together: ‘These were elements relating to Ms Coste’s private life, in respect of which she was certainly not bound to silence and was free to communicate’. Footnote 44

Limits on the right to tell your own story to the public

The right to tell your own story can therefore be a significant thumb on the scale when courts are deciding if the widespread publication of private material is justified. A closer look at these cases, however, shows that the right is closely circumscribed.

First, courts have made it clear that they will not take claims about telling one’s own story seriously if, in reality, the disclosure is about the claimant. In McKennitt v Ash, Buxton LJ (speaking for the Court of Appeal) agreed with Eady J’s observation in the court below that the defendant’s tell-all book about a friendship with folksinger Loreena McKennitt (which contained a detailed description of the singer’s response to her fiancee’s death, the singer’s daily life, and a property dispute with the author) was not ‘in any real sense about [the defendant] at all’. Footnote 45 The defendant, he said, had ‘no story to tell that was her own as opposed to being the first claimant’s’. Footnote 46 Courts have also consistently rejected claims that defendants who are blackmailing the claimant and/or selling kiss-and-tell stories to the tabloids are in fact motivated by a desire to tell their own story. Footnote 47

All this seems reasonable. Accurate disclosures motivated by, for example, a desire to expose serious harm or to set the record straight after being unfairly disparaged by a public figure could be protected as important exercises in freedom of expression. Footnote 48 But this is not the case with disclosures that are designed to cash in on a relationship with a famous associate. As the courts have recognised, disclosures of this nature have much less expressive value than those in which a defendant tells the story of their own life and the events that have shaped them.

Second, even when a story is genuinely the defendant’s own, storytellers are expected to minimise the collateral damage caused to others when telling it. The Court of Appeal held in Griffith v Tickle that the right to tell one’s own story (and the public’s right to hear it) is qualified by ‘the need to protect the rights of others who are participants in the “story”’. Footnote 49 They cited with approval Eady J’s observation in McKennitt v Ash that:

… if a person wishes to reveal publicly information about aspects of his or her relations with other people, which would attract the prima facie protection of privacy rights, any such revelation should be crafted, so far as possible, to protect the other person’s privacy. Footnote 50

In Roddy, contact prohibitions and anonymity orders helped protect the adopted-out child, its father, and their families from exposure. This meant that Roddy was able to tell her story but not to name the other key players in it. Again, courts are right to insist on these restrictions. Involuntary participants have often described the upset and disruption caused by featuring in someone else’s memoir. Footnote 51 The line between protecting their interests and the author’s right to tell their own story can be difficult to draw. But in most cases, it will be possible to protect the anonymity of those caught up in a story without significantly affecting the storyteller’s ability to tell it. Courts should do this where possible.

Finally, it is striking that in all of the cases where the right to publicise a shared experience has been upheld, something other than the individual’s right to tell their own story has been at play. For example, in Adams, the information about domestic violence in the boxer’s childhood home was already in the public domain and had been put there with the mother’s apparent blessing. And the court held there was a wider public interest in the inspiring story of the boxer’s life, which highlighted issues surrounding social mobility, gender roles and discrimination. Footnote 52 In Roddy, Munby J said there was a clear public interest in the claimant’s experience in the family court system and her perspective of the wider social issue of pre-teenage pregnancy. Footnote 53 In Couderc, there was a public interest in questions of succession in Monaco and in Griffiths, in the correction of false statements which an elected MP had publicly made about his own behaviour. In Rhodes, there was a public interest in ‘others being able to listen to the claimant’s life story in all its searing detail.’ Footnote 54 It is by no means clear that publication would have been allowed in these cases in the absence of these wider considerations. Nor is it clear that it should be. It would almost certainly be unreasonable to expect an everyday citizen to have the intimate details of their sex life published on the Internet simply because their sexual partner wanted to write about it in a creative writing exercise. The right to tell your own story should be a thumb on the scale when deciding whether a person should be entitled to speak in public, but it is not necessarily determinative.

Conclusion

None of these just-mentioned caveats should take away from the wider point this article is making about the significance of freedom of expression and an individual’s right to decide whether, when and to whom to disclose information about their private life. These interests are significantly disrupted by injunctions preventing people from talking about their own lives. Attempts to use the misuse of private information tort to prevent people from telling their own stories should, therefore, be treated differently from Campbell -style intrusions into the lives of strangers. James Rhodes, the defendant in Rhodes v OPO, recalled:

The shock of being told, in effect, you can’t say that. Not only can you not write it in a book, but we are trying to gag you from speaking anywhere in the world on any medium – on Twitter, in interviews, on TV. … Can you imagine? I wouldn’t be able to tell you now that I’m in treatment for mental illness without being threatened with imprisonment, had this been successful … What an extraordinary violation of someone’s basic dignity. It wouldn’t be my life. Footnote 55

This article has endeavoured to show that there are some situations where a person must be allowed to talk freely about their own life even though it involves disclosing private information about somebody else. Injunctions preventing limited disclosures to therapists, health professionals, family and friends should almost never be imposed. And, in spite of the valid caveats discussed in the previous section, a legitimate desire to tell one’s own story should weigh in favour of widespread publication in appropriate cases. Cases, like Roddy and Couderc, involving pregnancy, birth and child-raising are likely to be among them. As ever, striking the right balance between two important personal interests – in this case, privacy and individual freedom of expression – involves a delicate balance. It is made more difficult by the fact that entrenched societal power imbalances often sit behind applications to stop another from speaking about an experience they shared with someoen else. Courts are a lot more likely to get the balance right, however, if they clearly and robustly consider both sides of the equation.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Notes on contributors

N. A. Moreham

N A Moreham is a Professor of Law at Victoria University of Wellington and a Fellow of the Royal Society of New Zealand. Thanks to the anonymous peer reviewer and participants in the ‘ Campbell at 20’ conference for helpful comments on previous iterations of this work. The usual disclaimers apply.

Notes

1 Murray v Express Newspapers Plc [2008] EWCA Civ 446; von Hannover v Germany (2005) 40 EHRR 1; Hosking v Runting [2005] 1 NZLR 1; and C v Holland [2012] NZHC 2155. Most privacy claimants in England and Wales are men: see forthcoming research by Ursula Cheer (working title ‘The Impact of Gender in Privacy Claims in the United Kingdom and New Zealand’).

2 See for example, re airing the other side of a dispute, McKennitt v Ash [2006] EWCA Civ 1714; and re allegations of wrongdoing, BVC v EWF [2019] EWHC 2506 (QB) and CWD v Nevitt [2020] EWHC 1289 (QB).

3 See, for example, AMC and KLJ v Newsgroup Ltd [2015] EWHC 2361; ASG v GSA [2009] EWCA Civ 1574; CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB); Ferdinand v MGN Ltd [2011] EWHC 2452; McClaren v News Group Newspapers Ltd [2012] EWHC 2466 (QB); MJN v News Group Newspapers Ltd [2011] EWHC 1192 (QB); NEJ v Wood and persons unknown [2011] EWHC 1972 (QB).

4 N A Moreham, ‘Unpacking the Reasonable Expectation of Privacy Test’ (2018) 134 Law Quarterly Review 652, 653. That article said that the reasonable expectation of privacy test is not simply a factual enquiry into what privacy the claimant can expect in the situation but rather a normative one into what privacy protection they should be able to expect in the circumstances (ibid 653-655).

5 Murray v Express Newspapers Plc [2008] EWCA Civ 446 [36].

6 N A Moreham, ‘Privacy, Freedom of Expression and Legitimate Audience Interest’ (2023) 139 Law Quarterly Review 412, 414.

7 This is consistent with the idea, which I have developed elsewhere, that a reasonable expectation of privacy can be established either because societal norms support it or because the claimant has signalled, in a way which society generally recognises, that they regard it as private (for example, by closing a door behind them). In shared situations, the relevant signals would be any shared understanding between the parties – or its absence. See further, N A Moreham, ‘Unpacking the Reasonable Expectation of Privacy Test’ (2018) 134 Law Quarterly Review 652, 660-670.

8 See, for example, McKennitt v Ash (n 2); ASG v GSA (n 3); NEJ v Wood (n 3); and AMC (n 3).

9 Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 898 [48]. Eady J had also held, at first instance, that whilst it might be reasonable to treat information about the existence of an extramarital relationship discreetly, ‘that is not the same thing as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of expression by referring to it’ (Hutcheson (aka KGM) v News Group Newspapers Ltd [2010] EWHC 3145 [36]). See also SKA and PLM v CRH [2012] EWHC 766 (QB) [68]-[70]).

10 Couderc and Hachette Filipacchi Associés v France App no 40454/07 (ECtHR, 10 May 2015).

11 See discussion under the heading ‘Stage II and the Right to Tell Your Own Story’ below.

12 Couderc (n 10) [107].

13 Ibid [107]. The Court held that the information about the birth also had ‘undeniable public-interest value – at least for the subjects of the Principality’ because the child’s father was heir to the throne in the Principality of Monaco (ibid [108]).

14 SKA (n 9) [89]. See also Hutcheson, where the Court of Appeal observed that there is an ‘unavoidably public nature’ to certain aspects of the life of the married claimant’s second family (Hutcheson (n 9) [40] and [47(iv)]) ultimately allowing publication of the information because it was in the public interest (ibid [48]).

15 A (aka Flitcroft) v B & C [2002] EWCA Civ 337. The facts of the case and whether it would be decided the same way today are more fully discussed in N A Moreham, ‘ A v B plc′ in Paul Wragg and Peter Coe (eds) Landmark Cases in Privacy Law (Hart Publishing, 2023) 137.

16 Ibid [43(iii)]. See also ibid [11(xi)] and 45; and McKennitt (n 2) [30] where Buxton LJ said that the relationship between A and C and D was ‘a relationship of casual sex. A could not have thought, and did not say, that when he picked the women up they realised that they were entering into a relationship of confidence with him.’.

17 See PJS v News Group Newspapers Ltd [2016] UKSC 26.

18 See further, Julie Doughty and Judith Townend ‘Cold comfort: To what extent is there a gendered chilling effect in England and Wales?’ (2025) JML 1 (online preprint of this special issue: https://doi.org/10.1080/17577632.2025.2582766); and Ursula Cheer’s forthcoming analysis of New Zealand and English privacy case law (to be published as ‘Impact of gender in privacy claims in the United Kingdom and New Zealand’). For analysis of gender dynamics in the defamation context, see Ursula Cheer ‘The Impact of gender in defamation claims in the United Kingdom and New Zealand’ (2025) Journal of Media Law 1-38 (online preprint of this special issue: https://doi.org/10.1080/17577632.2025.2518833); Rebecca Moosavian and Peter Coe ‘The personal is political’: sexual misconduct allegations, defamation and gender politics’ (2025) JML, 1-40 (online preprint of this special issue: https://doi.org/10.1080/17577632.2025.2509997); and Jennifer Robinson and Keina Yoshida How Many More Women? The silencing of women by the law and how to stop it (Endeavour, 2022), especially Ch 6.

19 Obviously, this can also be relevant in shared experience cases. The public would have a legitimate interest, for example, in information about seriously harmful conduct which was taking place in the private domain. See, for example, Brake v Guy [2022] EWCA Civ 235 [72] and N A Moreham, ‘Privacy, Freedom of Expression and Legitimate Audience Interest’ (2023) 139 LQR 412, 430-432.

20 Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32.

21 Ibid [75].

22 Ibid [77]. The impact that the appellant’s disclosures might have on his vulnerable son was therefore not a basis for preventing him from publishing harrowing descriptions of his own childhood abuse.

23 Article 8 protects a ‘right to respect for his private and family life, his home and his correspondence’ and Article 10 protects the right to freedom of expression.

24 Griffiths v Tickle [2021] EWCA Civ 1882 [27]–[28]. In the court below, Lieven J had said that the impact of the family courts’ privacy requirements on parents’ rights to speak ‘should not be underestimated’ ([52]-[55] cited at [59] of the Court of Appeal judgment). Sharpe P approved of the weight Lieven J placed on this factor observing that, if anything, she might have ‘slightly undervalued this aspect’ (Griffiths ibid [70]).

25 Re Angela Roddy (a minor) [2003] EWHC 2927 (Fam) [35]-[36]. Cited with approval in, for example, Griffiths ibid [27]; E (by her litigation friend the Official Solicitor) v Channel Four and others [2005] EWHC 1144 (Fam) [49]-50; Re T (a child) (No.2) (Transparency: Publication of the Party's Names) [2024] EWHC 161 (Fam) [18]; Adams v Amazon Digital UK Ltd [2024] EWHC 3338 (KB) [33]; and Ms M v Mr F and Child C [2025] EWHC 801 (Fam) [16].

26 See, in the breach of confidence context, Francome and another v Mirror Group Newspapers Ltd and others [1984] 1 WLR 892, 413; Initial Services Ltd v Puterill and another [1968] 1 QB 396; and Pharmagona v Taheri [2020] EWHC 312 (QB) [56]-[57]. In the defamation context, the defence of qualified privilege protects publication of allegations of serious misconduct to police or other investigative bodies. In Australia, the "Stage 2B" Defamation Reforms also extend absolute privilege to reports made to the police (see, for example, Defamation Act 2005 (Vic) s 27(2)(ba)). (Thanks to the anonymous peer reviewer for drawing this point to my attention.)

27 CC v AB [2006] EWHC 3083 [35]. Courts also recognise that in some cases a defendant will be free to disclose private information to those (such as an adulterer’s partner) with a particular interest in receiving it: see ASG (n 3) [25]; N A Moreham, ‘ A v B plc ’ in Paul Wragg and Peter Coe (eds) Landmark Cases in Privacy Law (Hart Publishing, 2023) 137, 144-45; and N A Moreham and Adam Speker KC (eds) The Law of Privacy and the Media (4th ed) (Oxford University Press, 2024) [11.172]-[11.173]. In some cases, there might also be a therapeutic element to these kinds of disclosures.

28 Ntuli v Donald [2010] EWCA Civ 1276 [7]. See also, for example, Hirschfield v McGrath [2011] EWHC 249 (QB) [17]; YXB v TNO [2015] EWHC 826 (QB) 65; and JKL v VBN [2019] EWHC 2227 (QB) [13]-[17] .

29 See for example, S Jourard, ‘Some Psychological Aspects of Privacy’ (1966) 31 Law & Contemporary Problems 307. For discussion of theorists’ recognition of the individual benefits of expression, see Paul Wragg, ‘The Benefits of Privacy-invading Expression’ (2013) 64 Northern Ireland Legal Quarterly 187, 192-194. James Rhodes explained the impact of the injunction imposed upon him by lower courts before Rhodes v OPO [2015] UKSC 32 overturned it (see https://www.theguardian.com/music/2015/may/23/james-rhodes-pianist-interview (last accessed 27 November 2025) (discussed further in ‘Conclusion’ below)).

30 See, for example, Charles Fried, ‘Privacy’ (1968) 77 Yale Law Journal 475, especially 484; and James Rachels, ‘Why Privacy is Important’ (1975) 4 Philosophy and Public Affairs 323, especially 327–28. The Article 8 right to respect for private life has been held to include ‘the right to personal development, and the right to establish and develop relationships with other human beings and the outside world’ (see, for example, Pretty v United Kingdom [2002] ECHR 427, (2002) 35 EHRR 1 [61]).

31 The scope of permitted disclosures to professionals and/or family and friends would need to be decided on a case-by-case basis. Small group disclosures like posting on a small WhatsApp group or participating in group therapy could well be permissible in some circumstances.

32 Griffiths v Tickle [2021] EWCA Civ 1882 [27].

33 Re Angela Roddy (a minor) [2003] EWHC 2927 [35].

34 Rhodes v OPO [2015] UKSC 32 [76].

35 He accepted, for example, that even though the young father would be anonymised, in reality, people in his inner circle would realise that the story was about him (Roddy (n 33) [40]). He continued an injunction preserving the father’s anonymity and restraining the solicitation of information about him (ibid [43]).

36 Roddy (n 33) [43]. He held that there was insufficient evidence to support the local authority’s argument that, even if the baby was not identified, an anonymous telling of the story would disrupt the child's adoption, concluding that Roddy’s rights were therefore outweighed by the interests of the child (ibid [62]-[87] especially [79]).

37 Adams v Amazon Digital UK Ltd [2024] EWHC 3338 (KB).

38 Ibid [39]. The boxer had published an autobiography which included references to childhood difficulties including domestic violence and had spoken about ‘these aspects and her childhood repeatedly in the press’ (ibid [41]). This been done with the mother's apparent support (ibid [43]).

39 Ibid [39].

40 Indeed, it is suggested that it is often conceptually tidier to identify, at stage I, the nature of the privacy interest which the claimant enjoys and then, at stage II, to see how the defendant’s rights might curtail it. Kirsty Hughes has made this argument in respect of the relevance of the fact that the claimant is a public figure: see Kirsty Hughes, ‘The Public Figure Doctrine and the Right to Privacy’ (2019) 78 CLJ 70, 79-80.

41 Adams (n 37) [45].

42 Ibid.

43 Couderc and Hachette Filipacchi Associés v France App no 40454/07 (ECtHR, 10 May 2015) at [127]. See also [129].

44 Ibid [127].

45 McKennitt v Ash [2006] EWCA Civ 1714 [31].

46 Ibid [51].

47 See, for example, Ntuli (n 28) [23]; BVC v EWF [2019] EWHC 2506 [147]-[149]; Ferdinand (n 3) [81]-[82]; MJN v News Group Ltd [2011] EWHC 1192 (QB) [14]-[15]; and DFT v TFD [2010] EWHC 2335 (QB) [23].

48 As Warby J said in the breach confidence case of HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch), Campbell v MGN Ltd [2004] UKHL 22 makes it ‘clear law that the disclosure of otherwise private and confidential information may be justified if the claimant has herself misled the public, and the disclosure is necessary for and proportionate to the purpose of putting things right’ [105]. He also discussed in some detail counsel’s submission that the defendant in that case should be able to rely on a ‘reply to attack’ defence, modelled on that found in defamation, but dismissed it on the basis that the disclosure of the Duchess’s letter to her father was a completely disproportionate response to the ‘attack’ in question ([109]-[128]). On the freedom to expose wrongdoing, see Brake (n 19) [72]; and Lord Browne of Madingley v Associated Newspapers Ltd [2007] EWCA [54]; and AVB v TDD [2014] EWHC 1442 [208].

49 Griffiths (n 32) [29].

50 Ibid, citing McKennitt v Ash [2005] EWHC 3003 (QB) 77. See also Ferdinand (n 3) [82] and NEJ (n 3) [10]-[12], [16] and 23.

51 See, for example, statements by the woman to whom Prince Harry said he lost his virginity, in his autobiography, Spare (https://www.independent.co.uk/news/uk/home-news/prince-harry-book-spare-virginity-b2275957.html (last accessed 27 November 2025)).

52 Adams (n 37) [45].

53 Roddy (n 33) [82]-[85].

54 Rhodes (n 34) [76].

55 https://www.theguardian.com/music/2015/may/23/james-rhodes-pianist-interview (last accessed 27 November 2025).

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