{"id":225760,"date":"2025-05-06T00:42:25","date_gmt":"2025-05-06T00:42:25","guid":{"rendered":"https:\/\/peraltafinancing.com\/business\/legal\/high-court-provides-commentary-on-truth-allegations-of-criminal-conduct-sex-life-and-acts-in-public-in-privacy-cases\/"},"modified":"2025-05-06T00:42:25","modified_gmt":"2025-05-06T00:42:25","slug":"high-court-provides-commentary-on-truth-allegations-of-criminal-conduct-sex-life-and-acts-in-public-in-privacy-cases","status":"publish","type":"post","link":"https:\/\/fivemor.com\/?p=225760","title":{"rendered":"High Court provides commentary on truth, allegations of criminal conduct, sex life, and acts in public, in privacy cases"},"content":{"rendered":"


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A recent Judgment of Fordham J (Mullen v Lyles<\/em> [2025] EWHC 645 (KB)<\/a>), reversing, on appeal, an order of Deputy Master Marzec striking out a claim for the misuse of private information, provided some useful commentary on several knotty issues that crop up in privacy cases.<\/p>\n

Background<\/strong><\/p>\n

The Claimant was an events organiser, and a friend and business associate of the Defendant.\u00a0 In August 2022, the Defendant invited the Claimant to attend a music festival.\u00a0 The Claimant stayed with the Defendant and a group of the Defendant\u2019s other friends.\u00a0 In early November 2022, the Claimant ended his business relationship with the Defendant.\u00a0 Not long thereafter, the Defendant sent a WhatsApp message accusing the Claimant of sexually assaulting one of his friends at the festival.\u00a0 The message was seen by one of the Claimant\u2019s other business associates.\u00a0 The following January, the Claimant accused the Defendant of making similar allegations in an Instagram message and subsequent conversation with a further business associate.\u00a0 The Claimant sued the Defendant in defamation and<\/em> the misuse of private information.<\/p>\n

It is common ground that the Claimant engaged in some consensual sexual activity at the festival with a couple who were friends of the Defendant (anonymised in the proceedings as \u2018the Woman\u2019 and \u2018the Man\u2019).\u00a0 In short, the Claimant contends that all such activity was consensual, whereas the Defendant contends that the Claimant later sexually assaulted the other parties.<\/p>\n

In late November 2023, the Defendant applied to strike out the Claimant\u2019s claims. \u00a0In 2024, Deputy Master Marzec rejected the application in respect of the defamation claim, but struck out the misuse of private information claim.\u00a0 The Claimant\u2019s appeal of the latter decision came before Fordham J in February 2025, with Judgment handed down in April 2025.<\/p>\n

Analysis of the first instance decision<\/strong><\/p>\n

The basis of the Defendant\u2019s application to strike out the misuse of private information claim had been simply that \u2013 even on the Claimant\u2019s own case as to the facts \u2013 such limited and targeted publication (three publications to two people) of information which had not come into the Defendant\u2019s possession by \u2018intrusive means\u2019 could not unjustifiably have interfered with the Claimant\u2019s privacy rights.<\/p>\n

Fordham J observed that Deputy Master Marzec arrived at her decision to strike out by different analysis, connecting (in what Fordham J described as an \u2018exercise in logical synthesis<\/em>\u2019):<\/p>\n

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  1. the proposition that allegations of \u2018current criminal conduct<\/em>\u2019 will not typically attract an expectation of privacy (which was suggested in the 12th<\/sup> (2013) edition of the leading practitioner text Gatley<\/em>, and had been quoted by the Supreme Court in Bloomberg LP v ZXC <\/em>[2022] UKSC 5<\/a>); with<\/li>\n
  2. the principle that the question of the truth or falsity of the information is generally irrelevant to liability for misuse of private information.<\/li>\n<\/ol>\n

    On the basis of that connection, the Deputy Master concluded that whilst allegations of current criminality may, if false, give rise to a good claim in defamation<\/em>, they ought to be protected from an action in which the question of truth or falsity is irrelevant (or at least where the allegations were \u2018not clearly and obviously untrue<\/em>\u2019).\u00a0 In so concluding, she noted that the decision in ZXC<\/em> related to a criminal investigation by police, which was distinct from freestanding allegations of criminal conduct.<\/p>\n

    Fordham J determined that this analysis was flawed, but he was keen to stress that the Deputy Master had not been given the \u2018correct starting point\u2019 by the parties\u2019 respective advocates, who came in for criticism generally.<\/p>\n

    At the appeal hearing, the Defendant\u2019s advocate did not seek to defend the Deputy Master\u2019s analysis, and instead argued that the first instance decision should stand for different reasons, which were referred to by Fordham J as \u2018the cross-appeal\u2019.<\/p>\n

    Observations on the law<\/strong><\/p>\n

    Truth and the misuse of private information<\/em><\/p>\n

    The question of whether someone has a reasonable expectation of privacy (the so-called \u2018stage 1\u2019 test) is concerned with whether or not information is private, and not whether it is true or false.\u00a0 It follows that a claim in misuse of information may be available even when the relevant information is true.\u00a0 The Deputy Master was right to identify this principle.\u00a0 However, this is a principle, and not a \u2018rigid exclusionary rule<\/em>\u2019; it \u2018permits of a nuanced approach<\/em>\u2019.\u00a0 The Court is to take account of all the circumstances when assessing whether there is an expectation of privacy; it may be appropriate for the Court to decide the facts regarding a relevant circumstance.\u00a0 In any event, the stage 2 test (the question of whether the expectation of privacy is outweighed by freedom of expression), is a fact-specific exercise in which it may well be relevant to decide the truth or falsity of the matters raised.\u00a0 In the instant case, the principle was treated in the Deputy Master\u2019s analysis as though it were a rigid exclusionary rule, including at stage 2, and that had led the Deputy Master to the (public interest) concerns which she had expressed, and upon which her decision to strike out had been founded.<\/p>\n

    A claim in the misuse of private information could be susceptible to strike out as an abuse of process where the nub of the complaint was falsity, and a claimant was seeking to avoid the rules of defamation (particularly as regards the rule against prior restraint) but no such argument had been made in the instant case.<\/p>\n

    Criminal conduct and the misuse of private information <\/em><\/p>\n

    Whilst the 12th<\/sup> edition of Gatley on Libel and Slander<\/em> had included \u2018current criminal activity\u2019 as an example of information which would not normally be regarding as giving rise to a reasonable expectation of privacy, the current (13th<\/sup> 2022) edition (and its 2024 first supplement), which had been updated, inter alia, in light of ZXC <\/em>itself, no longer did so, and instead suggests that allegations of criminality may attract such an expectation, whilst acknowledging that this is one of the most difficult questions with which the Court is presented.<\/p>\n

    Fordham J observed that it is difficult to generalise about the treatment of privacy claims based on allegations of criminality (including whether any public policy concerns tending against such claims should be considered as part of stage 1 or stage 2 of the test) and that such cases compellingly illustrate why there can be no rigid exclusion of an enquiry about the truth or falsity of the information.\u00a0 The public interest\/public policy arguments presuppose the truth of the information about the individual\u2019s conduct, but in some cases the Court may find that they are false.\u00a0 It cannot be that a false assertion of criminal conduct would mean that a claim for the misuse of private information cannot proceed.\u00a0 In short, communicating information about a crime may, or may not, be a misuse of private information.<\/p>\n

    Decision on appeal<\/strong><\/p>\n

    Fordham J found that:<\/p>\n

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    1. The Deputy Master\u2019s analysis had been premised on there being a rigid exclusion of any enquiry as to truth or falsity; this was a material error which she had been drawn into, in part by the failure of both parties to address the Court on the \u2018nuanced qualification\u2019<\/li>\n
    2. The Deputy Master\u2019s analysis also entailed a generalised conclusion about information describing criminal conduct. This was grounded in concerns about victims and witnesses of crime; the Judge had not been made aware of the particular inappropriateness of any rigid exclusionary rule regarding truth and falsity in the context of such allegations<\/li>\n
    3. In that context, the Judge had been taken away from a fact-specific assessment of the case. This was not, in fact, a case about \u2018current\u2019 criminal conduct, but \u2018past\u2019 criminal conduct, the Defendant was not the victim, and -taking the Claimant\u2019s case at its highest (which is the necessary approach to strike-out), this was not a case of reporting which is truthful or in good faith<\/li>\n
    4. Concerns about the overlap with defamation had not been raised.<\/li>\n<\/ol>\n

      For all these reasons, the Judge\u2019s reasoning could not stand as a basis for strike-out.<\/p>\n

      The Defendant\u2019s \u2018\u2018cross-appeal\u2019\u2019<\/strong><\/p>\n

      As above, the Defendant sought to argue for the maintaining of the Deputy Master\u2019s decision on the following, alternative, grounds, and with reference to the so-called \u2018Murray<\/em> factors\u2019 (from Murray v Big Pictures (UK) Ltd<\/em> [2008] EWCA Civ 446<\/a>):<\/p>\n