Briefing

When relationships break down: Protecting your privacy and reputation in the aftermath of a breakup

Posted by: Alicia Mendonca | Date posted : 15/05/2017

For high-profile individuals, a breakup or divorce is not only a time of emotional and financial strain. It is also poses a threat to your privacy and reputation. Knowing how to prevent and respond to these risks is essential.

Brad Pitt's recent GQ interview is noteworthy not only for its eccentric photo shoot; it also highlights a problem facing many high-profile individuals when their relationships break down. It has become increasingly hard to protect your privacy and reputation when dealing with a divorce or breakup. For Brad Pitt, this involved press reports of alcohol problems and an 'altercation' on an aeroplane. In March, Mischa Barton bravely spoke out about becoming the victim of revenge porn at the hands of a particular nasty ex-boyfriend.  Media interest in the personal details of the rich and famous is not going to go away. Divorce proceedings face an ongoing privacy battle, while social media increases the risk of private conversations and photographs being leaked. For those in the public eye, knowing how to prevent and respond to these risks is essential.

Allegations, rumours and speculation

It is almost inevitable that a breakup will involve allegations of one sort or another. Where one or both parties are well-known, these allegations can find their way into the press. Johnny Depp and Amber Heard's divorce was so acrimonious that even Depp's ex-wife took to social media to defend him, while Heard was accused of fabricating incidents for financial reasons. Matters were made worse when an unflattering (and allegedly edited) video of Depp was leaked online. It is no surprise that following settlement, the couple released a statement that, "There was never an intent of physical or emotional harm. Neither party has made false accusations for financial gains."

High profile individuals are particularly vulnerable to malicious allegations or speculation about their intentions when separating from a partner. Whichever side you are on, steps can be taken to try and prevent details finding their way into the public sphere. It is sometimes those surrounding the couple – rather than the couple themselves – who leak private details, whether intentionally or not. Non-disclosure agreements can be a helpful tool to prevent this. Where employees know that they have contractual obligations of confidentiality, they are more likely to be aware of the need for care and discretion.

Another essential tool to safeguard privacy is up-to-date cyber security. From failing to secure your social network to falling victim to a cyber-attack, the availability of information online is one of the easiest ways for private information to become public.  The risk can be minimised by carrying out risk assessments and securing your devices and your network (as well as those of family members and employees with access to private information).  High-profile individuals should also be aware of their online presence and what can be found on social media, web archives and the dark web. Steps can then be taken to remove private information before it falls into the wrong hands.

Online monitoring and communications planning are also key. Where the risk of defamatory allegations or confidential leaks is high, prevention and preparation can really help. Reports can then be detected and removed before they go viral. For those based in the UK, online content that breaches an individual's privacy, their data protection rights or which constitutes libel or slander can and should be removed by online platforms, including social media, search engines and the online press. The quicker this action is engaged, the more effective it is likely to be.

Unfortunately where allegations are made in divorce proceedings in open court, the situation is less straightforward. In the English courts, there is a lack of consistency when it comes to allowing the media to report on divorce battles. Some judges are more sympathetic to applications for reporting restrictions than others. While the involvement of children is usually more likely to make the court sympathetic, reporting restrictions cannot be guaranteed (as covered in our previous briefings – see here and here). One solution is arbitration, which is a completely confidential process and imposes a binding award on couples. However, both parties must agree to take part. High-profile individuals should be live to reputational risks when deciding how to proceed in the event of a divorce. Communications planning should be engaged from the very start.

Revenge Porn

It is sadly becoming more common for revenge porn (or threats of revenge porn) to feature in break ups. The effects can be devastating for anyone who finds their intimate images or videos have been leaked or sold without their consent. For high-profile individuals, the risk is increased by the fact that the incident will inevitably attract press attention. This has been particularly prevalent in 2017. Both revenge porn and blackmail are criminal offences, and victims should report any alleged offences immediately.

Those in the public eye need to be particularly live to this risk. By taking immediate action, potential victims may succeed in preventing a leak from happening. In addition to probable criminal offences, revenge porn is likely to constitute a misuse of an individual's private information and their sensitive personal data. If the victim took the images themselves, there is also a potential copyright claim. Anyone who publishes this footage could therefore find themselves paying substantial awards for damages at court. The same is true of media outlets who report on the leaked footage without obtaining the victim's consent. Potential publishers need to be put on notice as soon as possible. It is therefore important to take action as soon as you aware of the risk.

Where images or videos have already been leaked, steps can be taken to get the footage removed from the web and/or out of the press. Most online intermediaries (including search engines, social media sites and porn websites) have tools to report and request the removal of intimate images or videos that are posted without consent. Once an incident of revenge porn has been reported, the footage is usually removed swiftly. Online monitoring will help to ensure that no traces of the footage remain online or get reposted. Again, the sooner this action is taken, the less likely it is that the footage will go viral.

Summary

Anyone in the public eye is likely to be used to media interest in their romantic and family life. When these relationships break down, there is a risk that all sorts of information can become public – from personal and financial details to malicious rumours and private photographs. It is therefore important that high-profile individuals – and those around them - actively engage in protecting their reputation and their confidential information. Knowing how to prevent and respond to leaks can help to ensure that strained relationships do not result in a reputational nightmare or a loss of valued privacy. It is also most likely to lessen the tension between the parting couple as there will be less of a 'blame game' about what has been made public and by whom.

If you require further information on anything covered in this briefing please contact Alicia Mendonca(alicia.mendonca@farrer.co.uk) or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2017