Last week Carina Trimingham, partner of MP Chris Huhne, lost her claim for misuse of private information, breach of her moral rights pursuant to Section 85 of the Copyright, Designs and Patents Act 1988 and a, rather last minute, claim under the Protection from Harassment Act 1997.
In 2010 the Daily Mail and Mail on Sunday published a series of articles about the Doc Martin wearing, bisexual Trimingham. She claimed that the articles reduced her to a crude stereotype, attacked her dignity and impinged on her right to privacy.
Against the background of the (sex orgy) Mosley decision, you might have expected Trimingham to succeed. She lost and, although insured, now faces a bill from Associated Newspapers, believed to be in the region of £400,000.
Does this mean the tide has turned in favour of the press in relation to the privacy claims? Well, maybe, but there again, maybe not.
As is often the case with such claims, the background to the publication is of importance. At the time of publication Trimingham was a seasoned journalist and communications officer, who had previously been seconded to work as a press officer for Chris Huhne’s re-election campaign.
At the time the affair began, Huhne was a married man who, perhaps playing the family values card, published a campaign leaflet telling his electorate how much he valued his family.
Trimingham claimed the articles amounted to “a cataclysmic interference” in her private life and confirmed homophobic prejudice.
Despite this the court found that publication did not warrant payment of a penny piece. In fact, the court said that Trimingham did not have a reasonable expectation of privacy in relation to the information published, that she was not a purely private person, by reason of her personal and professional involvement with Huhne, and that she did not have a “reasonable expectation of privacy” in relation to the (published) information that she was bi-sexual, not least because she had entered into a civil partnership and then had an affair with Huhne.
Perhaps the contrast with the Mosley case, where Mr Justice Eady found that (usually) sexual activity between consenting adults, in private, should remain private – despite the existence of a wife, is that Trimingham had a professional, as well as private relationship with Huhne, who had apparently used the ‘family values ticket’ to gain votes.
The judge recognised that Trimingham had also put certain private information about herself into the public domain in the past and, once opened, that door couldn’t be closed even if pushed a little wider, having regard to all the circumstances.
As to details of her sexual history, and the fact that Trimingham was alleged to have told friends that sex with Huhne was “amazing”, the Judge (Mr Justice Tugendhat) found that the additional information was “not sufficiently serious to pass the threshold of seriousness necessary for finding that there had been a misuse of private information.”
The claim for breach of Trimingham’s moral rights arose from the publication of photographs taken at her Civil Partnership ceremony. Although the claim was rejected, this stands as a timely reminder to us all, that a person “who, for private and domestic purposes, commissions the taking of a photograph” may retain certain rights, over and above those of the copyright holder, if those photographs are subsequently published without consent.
As to the rather late claim for harassment (permission to include the claim was sought after the trail had started), the judge held that Associated Newspapers ought not to have known that the language used was sufficiently distressing to be considered oppressive or to have amounted to harassment, so that element of the claim also failed
Although the press, arguably, could not have asked for a better back-story than the Minister and the bi-sexual lover, the significance of this case perhaps lies-in the fact that Mr Justice Tugendhat, who set a threshold of seriousness test for defamation matters in the Thornton case, appears to have now applied that same test to a claim for breach of privacy.
Trimingham says she intends to appeal – on the basis that the judgment is “a blueprint for bullies and bigots” – we’ll have to wait and see what the Court of Appeal make of it all.