In a case concerning allegations of an extramarital affair, the English High Court considered the competing interests between one litigant’s right to respect for their private life, the other’s right to freedom of expression, and the general principle of open justice.
SOJ v JAO concerned an allegation by “Ms O” that she had an intimate affair with a wealthy and well-known businessman, “Mr J”, in which Mr J infected her with sexually transmitted diseases. Ms O threatened public personal injury proceedings against Mr J unless he agreed to pay $2.5 million. The threatened litigation was ultimately resolved by way of a settlement agreement in which Ms O was bound by a number of confidentiality provisions.
Mr J subsequently discovered that Ms O (allegedly) breached a number of those provisions. It was agreed between them that Mr J would forensically examine Ms O’s mobile phone to determine whether the allegations were true. After doing so, Ms O threatened to bring new proceedings on the basis that the examination breached her personal data rights – which would necessarily involve publication of the details of their affair – unless Mr J agreed to pay her a further $250,000. In response, Mr J applied ex parte without notice for an injunction restraining Ms O from publishing details of the affair.
After careful consideration of the authorities, the Court granted the application on an interim basis pending a full inter partes hearing. In doing so it upheld the Master’s decision to anonymise the proceedings and went on to order that the inter partes hearing be held in private. The Court based its decision on the following reasons (amongst others):
- Mr J had a reasonable expectation of privacy regarding the details of the affair and there was no public interest in disclosing them;
- Disclosure of the parties’ names and/or holding the hearing in public would defeat the object of Mr J’s application, and once confidentiality was lost, it was lost forever;
- The parties freely negotiated the confidentiality provisions of the settlement agreement and there was no evidence of improper pressure by Mr J;
- There was credible evidence before the Court that Ms O had committed past breaches of the agreement and was threatening to do so again; and
- The possibility of blackmail, recognizing that the Court needed to ensure it does not assist or encourage blackmailers.