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Farrer & Co | Relationships on the rocks: A guide to protecting privacy

Shortly before he took office, our now Prime Minister became the latest high-profile individual (albeit not for the first time) to have his love life splashed across the front pages. Much of the coverage following the now infamous row in Camberwell centred on whether it called into question Mr Johnson's suitability for the highest office in the land. Meanwhile, when allegations of sexual harassment engulfed Sir Philip Green last year (allegations which he denies), the focus was (and continues to be) on Sir Philip and the wider role of non-disclosure agreements (NDAs) in the professional world. Less has been said of the impact of such coverage on the other party to the relationship.   

Nevertheless, family and relationship crises such as these naturally generate a variety of considerations and challenges, ranging from the emotional turmoil, to the practicalities of divorce proceedings, to the potential for a significant escalation in media scrutiny. How these issues are managed can have a huge impact. 

Many high-profile divorces have played out in a very public way, increasing the level of animosity between the parties and in many cases creating long lasting emotional strain. Invariably, it also has a detrimental impact on their privacy and that of those around them, including often the children. While family crises will always be distressing, steps can be taken from the outset to mitigate against the publicity that might otherwise ensue. 

Hope for the best – plan for the worst: Non-disclosure agreements

A straightforward measure is to ensure that the other party is bound by appropriate contractual obligations of confidentiality, namely an NDA, in advance of marriage. The time to consider whether to enter into an NDA is often the beginning of a relationship – if it is left until the end, there is little incentive on the other party to sign up to the agreement. NDAs are often dealt with at the same time as a pre-nuptial agreement (for those who are marrying) or as a cohabitation agreement (for those who have decided to live together). The NDA can be drafted very broadly to prevent either party from disclosing confidential information (including photographs). However, it will only cover information that is truly confidential or private and will not be enforceable in relation to information that is anodyne or already (lawfully) in the public domain.

NDAs can also be used to impose a contractual obligation on one or both parties not to publish images (or other mentions) of the other and other family members on social media accounts, and/or to delete any such content. This can apply during marriage or in the event of relationship breakdown. Equally important might be a clause in the NDA which requires each party to notify the other in the event of any contact from a member of the media and not to provide any information concerning the relationship to the press without the other party's consent. A requirement to account for profits received from the press is a further disincentive.

As with any contract, the terms of an NDA must be sufficiently certain, the more widely drafted the term, the greater the risk it might not be enforceable. Further, any NDA which seeks to prevent the disclosure of unlawful activity or conduct in which there is a clear public interest is likely to be unenforceable and leave legal advisors open to criticism and, in particularly serious cases, disciplinary action from the regulator. To date, this issue has arisen more in #metoo cases where NDAs have been utilised in the employment context but there is no reason it could not arise in a restriction on disclosure of unlawful behaviour following a relationship breakdown.

The eye of the storm: managing the press when the crisis breaks

It is vital that early thought is given to what will be said to the press and when. Privacy and confidence cannot be guaranteed, even with an NDA in place, especially if the end of the relationship is of interest to the press. An NDA will often therefore need to be supplemented by additional measures. At their simplest, these might include a short joint statement confirming the divorce and asking the couple’s (and any children’s) privacy to be respected, twinned with all parties maintaining discretion thereafter. 

Of course, any such statement needs to be carefully worded, if necessary with the assistance of legal and public relations advisers. Likewise, couples must practice what they preach and even the most carefully worded statement can be totally undermined by one party’s indiscretions on social media, hence the value of having the contractual weight of an NDA too.

Spring cleaning the skeletons in the closet – digital reviews

Sometimes, though, the story is simply too good to be true for the media and a statement requesting privacy is not enough. This needs to be pre-empted and potential sources of reputation risk should be identified. A divorce will often lead to an increased scrutiny of the couple’s whole life, meaning that resourceful journalists will look at other aspects of each party’s public profile to generate content. 

Where this is likely to be the case, risks should be identified, for instance through the forensic audit of each party's online profile (using online intelligence specialists) and steps taken to remove any content (for instance on social media profiles) that might itself give rise to coverage. The recent developments in data protection law, through the General Data Protection Regulation and last year’s High Court case of NT1 and NT2 v Google LLC [2018] EWHC 799 (QB), have increased the scope for improving individual’s online profiles (where data published is, by way of example, inaccurate, excessive or outdated). Ideally, anyone with a significant profile would carry out this routine maintenance of their online footprint on a regular basis.

The threat to privacy

This all being said, the most intense subject of scrutiny is more likely to be the divorce itself and the facts underlying it. Unless and until the divorce becomes the subject of open court proceedings (on which, see below), aspects of the breakdown of a couple’s marriage are highly likely to engage their (and potentially their children’s) privacy rights. It is important to adopt a robust stance in order to prevent privacy invasion running away from you. The law of privacy has been gradually strengthening in recent years with the press finding it increasingly difficult to justify root and branch accounts of crises within an individual’s personal life. 

A series of considerations may impact upon an individual’s expectation of privacy or indeed on the weight accorded to the media’s freedom of expression rights in any balancing exercise with privacy. Those who have voluntarily made their private life public, the recent surge in reality TV stars springs to mind, with Kim Kardashian West at its forefront, are certain to have a reduced expectation of privacy in the eyes of the law. Similarly, aspects relevant to the breakdown of the marriage may in themselves be matters of public interest; few would argue that the exposure of Harvey Weinstein’s misconduct constituted a misuse of his private information. However, the press does not have carte blanche to report on a couple’s life behind closed doors once a separation is announced.

Intrusive media coverage and (in the case of celebrity couples) persistent paparazzi can be warded off by circulating a warning notice via the Independent Press Standards Organisation (which regulates much of the print press). However, any such notice needs to be accompanied by a willingness to take action if it is ignored, as well as a realisation that reputation risk is no longer restricted to what is said by newspapers. Other actions might involve correspondence to individual publications, online platforms and/or picture agencies (the purpose of the latter being to cut coverage off at one of its sources), or indeed a willingness to pursue legal proceedings against persistent or serious infringers. Of course, this always needs to be considered in the context of the wider divorce proceedings as a whole.  

Finally, while any NDA will hopefully cover disclosures by the other party, individuals are as much subject to the law of privacy as the media, meaning that the lack of, or gaps within, an NDA is not fatal to privacy. Activities such as the unauthorised accessing of a party’s computer or mobile device are increasingly common and may also fall foul of the criminal law, and even if the Police may not have the resources or inclination to take action, will not be looked upon favourably in any divorce proceedings.

Divorce proceedings and the press

Although the financial proceedings upon divorce provide that cases should be heard in private there have been recent differences of opinion between family divorce judges as to the interpretation of the rules. Some consider that all family hearings should be heard in private. Others (most notably Mr Justice Holman) consider that, although that is the starting point, it is open to the judge to decide to hold the case in open court. Mr Justice Holman frequently hears cases dealing with the financial aftermath of a marriage in open court. This means that any member of the public or press can attend.  

Even for those cases heard “in private” provision was introduced in 2010 allowing accredited members of the press to attend such hearings. Recently, the rules were amended further to allow legal bloggers to attend. Whilst limitations are usually imposed upon their ability to report the content of those hearings, their attendance can cause considerable anxiety. Where cases are heard in private, they will be anonymised in any reporting. However, even where cases are reported anonymously, there is the risk of "jigsaw identification", whereby readers can work out who the parties are by piecing together the detail in the judgment.

As a result, high profile divorcing couples are well-advised to consider alternatives to the court process and, in particular, arbitration. Advantages of arbitration include the fact that it is private, generally quicker than the court process and enables the parties to agree on the process that applies rather than abide by The Family Procedure Rules. This can help to create a greater degree of control and confidentiality. However, it relies upon the parties reaching an agreement on exactly what the process should be, which is by no means guaranteed.

Conclusion

While it may be seen as unromantic, there is real merit in those with a significant public profile ensuring they take steps to protect their privacy from the beginning of a marriage. Increasingly, even those not in the public eye are being faced with issues on divorce or relationship breakdown surrounding the use of social media. This includes children’s access to and use of social media and also what information and images the parents and other family members share on social media. The steps summarised here will help to prevent sensitive information being exposed during the relationship and, in the worst case scenario, if it breaks down.  

If you require further information about anything covered in this article, please contact Caroline Holley or Thomas Rudkin, or your usual contact at the firm on +44 (0)20 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, July 2019

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