In this episode, what protections exist for couples and their families, particularly children, involved in Court proceedings linked to a divorce or separation? And what can you do if your private information ends up online.
Hello, and welcome to the Mishcon Academy Digital Sessions podcast, I’m Charlie Sosna, a Partner in the Private Department at Mishcon de Reya and I’m joined remotely by colleagues Emma Woollcott, Head of the Reputation Protection Group and Claire Yorke, a Legal Director in our Family Department.
Claire, Emma, we’re routinely involved with personal relationships and privacy for our clients. I always think our clients fall into sort of two categories; those that have done well but they are incredibly private people and all aspects of their life are private or those that have a public persona but there are still private aspects of their life that they need to keep private and are very worried about when things get into the public domain. But today, let’s focus on a specific situation, a marital breakdown, particularly when children are involved, to understand both the family and privacy law perspective, you know, where are the legal boundaries and what are the potential remedies when things go wrong.
So, let’s start at the beginning. You know, the broader implications of a break-up. Clients can sometimes have a degree of control over their life and what gets out in the public arena, but where there is a break-up, the normal steady ship starts to rock and they’re really concerned, I think, about the negative impact on their public profile, whether that is on their career, in their friendship circle or their wider reputation.
Claire, when you first meet clients, and that’s a difficult conversation I think for many aspects of it, is it something that they bring up?
Yes, they do. And of itself, divorce and separation shouldn’t impact your career or your professional reputation, unless of course, one or both of you has made a career out of your marriage. In which case obviously we’re in a totally different scenario. Having said that though, actions at the end of the marriage and the actions that have brought about the end of the marriage, do have repercussions and the way you conduct yourself within the Court proceedings or the financial negotiation can also have repercussions. For example, if a Court finds that one party is being dishonest in their financial disclosure, that they’ve withheld assets, then there is a risk that the case could be reported and we’ll talk about that in more detail. But if it’s reported then actually the fact of you doing that could become knowledge to employer, friends and family. So, if you worked in the financial sector for example, the decision that may feel like a good one at the time to doctor a bank statement or hide a document to show the purchases for the girlfriend before your wife found out about them or the transfer to friends that you’re hoping somebody doesn’t know about, it can come back and haunt you and you need to keep that in mind. And where I believe a client’s not been given a full picture, it’s a large chunk of what I do which is looking at the financial disclosure and the information that’s been given to me and developing a sniff test over the many years as to what feels right and what doesn’t, I will dig round to make sure that I’m happy that my client has all the information they need and sometimes that may involve me contacting an employer or a third party, for information to be given directly and that is done in the proper manner, with Court Orders and in an instructed way, but it does mean that actually what could be something very private that you don’t want anybody to know about at work, some people may know about it because information is needed.
I think that makes sense you know, I’ve worked on clients who have been hugely concerned that they can see there’s going to be a marital break-up and they go to great lengths to keep that information from everyone, or they are worried that they know it’s inevitable that there will be a break-up and they have a public persona and maybe some of their indiscretions, that have led to that break-up, are going to come out.
Emma, are those the sort of things that you see your side and do you agree with that?
Oh, yes I do. Divorce and separation inevitably are a very emotional time and people inevitably don’t behave at their best in these times of anxiety and stress so it’s rare that people behave consistently in an exemplary manner. Whilst divorce and marital breakdown shouldn’t be something that has an adverse impact on your reputation, how you behave during a divorce or Court proceedings involving your children, can come back to embarrass and shame you. We live in a country with a very robust and, at times, intrusive press so whether the parties of the marriage are high profile or if the circumstances of a divorce are deemed unusual or newsworthy, it can be that divorces attract media attention and scrutiny.
When I’ve had a client talk to me about it before, I think they’re worried about two aspects; one is they’re worried about the other party to the marriage intentionally leaking things to the press as sort of part of a strategy or just as sort of a fight back against, in anger; or the other is you know, just how intrusive they feel the press is in the UK now. But do the press have an absolute right to investigate and comment in scenarios like this?
The starting principal is open justice. However, having said that, family Court hearings are generally held in private. Contested divorce proceedings and committal hearings, for example where somebody has breached the terms of an Order or has failed to make a payment for example, they’re public and some Judges have held financial hearings in public. But even where press can attend, there are limitations on what they can report and if they report things that the law doesn’t permit them to do and go outside the bounds of what’s been agreed, then that’s contempt of Court. For example, I’d say the two aspects the client wants to worry about most if they’re having Court proceedings, is information about their children and information that’s financially sensitive. So, generally the press is not allowed to publish anything which identifies a child in proceedings, whether that’s their name, their address, details of a school, anything that comes out of general evidence which could be used to identify them and we also routinely argue for restrictions about financial information that could affect a company’s value. So, giving out details about well, even the presence of a divorce, quite often, for somebody senior in the company but actually if we’re looking at valuation evidence and talking about minute details of future projects etcetera, they are all things that could be sensitive for share price. So, they’re the kind of things that we ask for reporting restrictions on.
Where we have got contested full proceedings and you go to a final hearing and the decision is reported, then routinely it is anonymised. So, that would be the parties’ names, addresses, etcetera. It’s still quite often possible to work out who it is, but we do have a great say in what is anonymised and what is public record. There are instances though where actually a party may want to identify themselves and a Court will take into account actually whether that is a reasonable thing to do. For example, where allegations have been made against a parent in care proceedings and it’s been found that that’s not the case, a parent may wish to discuss their experience, either to ensure that there is a learning piece from it and other parties don’t go through it, or so they can exonerate themselves against the allegations that have been made. However, even in those circumstances, talking about details of proceedings can only be done with the permission of the Judge.
That’s all really interesting Claire, and Emma from your side, what are the legal and procedural checks around all of this?
So, as Claire said, one of the legal checks and balances that’s built into our legal system is the principal of open justice, that justice needs to be seen to be done and in the context of family proceedings and care proceedings, often the media are allowed to attend Court hearings so they can see how and why decisions are made, they’re just not allowed to report on them. So, this leads to quite interesting legal challenges because the Courts will order reporting restrictions, so there’ll be sections of the media that are allowed into Court proceedings; they will hear financial data, they’ll hear welfare concerns over children and over vulnerable adults but they won’t be able to report on the detail or any detail that may identify the parties. And it’s done like this so that there can be scrutiny about the judicial process and the media can see that justice is being done.
You asked about reporting or disclosure or leakage of information from family proceedings and it’s a potentially very serious offence if you post on social media or you encourage journalists to report on matters which the Court has decided should be restricted from publication and you can potentially put yourself in contempt of Court. So, contempt of Court is a strict liability offence. It doesn’t matter if you mean to commit it or if you are doing so innocently, but it’s the publication of any information that could put into jeopardy proper Court process. Even with information that’s not as serious as something that is restricted by a restraining order or a reporting order, parties in divorce proceedings need to be very careful, particularly when they’re venting about their exes, that they’re not potentially putting themselves into a situation where they may be liable for civil claims in relation to either misuse of private information or defamation.
We talked before about people behaving very badly during divorce and family breakdown and they can often think that they can speak to their friends on social media or over WhatsApp or in a relatively - to a small group of people – with impunity but they need to be very careful when doing so. There have been quite a few defamation cases coming out of divorce proceedings where the parties to an acrimonious relationship breakdown have defamed each other and deliberately or otherwise lowered their ex in the minds of right-thinking members of society. There was a case actually that went all the way to The Supreme Court last year, involving a woman who was sued by her ex-husband for posting on his new partner’s Facebook page, that he had tried to strangle her. She hadn’t meant as the Ex alleged that he had tried to kill her but literally that he had put her hands around her throat i.e. common assault and this led to a series of decisions that went from The High Court to The Court of Appeal to The Supreme Court and down again about the interpretation of words posted on social media and the Courts considered this in detail and cautioned against Judges relying on dictionary definitions when looking at family disputes and words expressed on social media. The Judges are encouraged to take a kind of pragmatic and sensible route through to look at the words in their proper context and in that case, the ex-wife was able to defend what she had said as true and was successful in her defamation claim. So, it’s a very sobering lesson for those who post on social media, voicing concerns about their family breakdowns and it can lead to what starts as a sideshow in the family proceedings but can take up a very expensive life of its own.
Yeah, I think as we sort of mentioned at the beginning, that there’s the risks of things becoming public because of the press attention and we sort of talked a bit about that and the press’ reporting obligations and you would think that you would like to think that the press are well legally-advised themselves on what the limits are and then there’s the separate risks of third parties and breaches of privacy from sort of the other party to the breakdown.
Claire, just want to go back a bit. You talked about third parties earlier and financial disclosure and things like that.
How easily do you find documents turn up in the wrong hands of someone during these proceedings?
I think this is actually one of the parts of the process that people find the hardest to grapple with. At the end of the day, when your relationship has broken down, you’re talking about your personal life and it’s what feels more natural than having a conversation with your family or your friends about what you’re going through. And whilst a private conversation is one thing about heartbreak and your feelings about it, that needs to not then extend into the release of information or documentation that you’ve got within the context of a new proceedings. The family Court are really clear on this. The starting point is that the Court and the parties to the proceedings are the only people here entitled to any information and documentation.
In financial proceedings, there is an implied undertaking not to disclose documents that you receive to anybody else. Generally, it is accepted between solicitors that the financial information, the bank statements, the pension valuations etcetera that you exchange as part of the negotiations process, it’s generally accepted that they can be shown to a wider team of advisors so, an accountant or a Barrister, rather than it simply being the solicitor who receives them and the client. Because those people have professional obligations in relation to confidentiality also. However, whilst that exists, more and more in cases where the information is particularly sensitive or the party is maybe high-profile or the degree of trust has just broken down to such an extent, we are more and more signing NDAs and getting the wider team to sign NDAs before financial disclosure is provided. That’s generally fine and accepted and as professional advisors we’re totally comfortable doing that. Where I find that parties still have an issue, is where they want to show something to their friends and family for support. And many people believe that as it’s their divorce and the documents relate to their marital assets, then why wouldn’t they have the right to show their friends and family, either for that advice and support or if perhaps you’re not the more financially savvy of the marriage you maybe want to speak to your friend who does understand these kinds of investments or your parent who does have your best interests at heart or other times you just want to vent because you can’t quite believe how much money is being spent on something or that girlfriends or boyfriends have been receiving very expensive presents, more expensive than your Christmas present has been for the last 10 years. But that right, unfortunately, does not exist and sharing documentation with friends and family is potentially contempt of Court and we need to make sure that clients are very clear on that. People seem to accept and understand that if you have a hostile intention, so you want to give a document or evidence of an affair to your ex-spouse’s work colleague obviously, people can see that that is not acceptable and that’s contempt. But the family Court takes a very strong view on just giving it to who you believe is close friends and family hoping that they will keep things quiet and they may not.
I think one of the reasons why it’s so important that that protection remains there is the fact that there is a duty to provide full and frank disclosure in financial proceedings and people need to go into these negotiations and need to go into these discussions with the belief that everyone is being open and is being frank and honest so that you can then do a deal. And to do that, people need to know that the security is there.
It's also interesting that the privilege against self-incrimination does not apply in financial remedy proceedings. So, this has led to situations even where financial documents have implicated a party in a criminal offence and they’ve been disclosed in divorce proceedings but the Police and the prosecution were not allowed to use those documents in their proceedings because that wasn’t the context they’d been disclosed in.
And I think the last thing which I’m just thinking more about what Emma has been saying and where Emma’s team is so invaluable in how we’re living now is, as with social media, if you’re considering after a couple of gin and tonics, putting something on social media about the Court proceedings or your view on it or the disclosure you’ve had, just don’t.
Yeah and I think that’s one of the really hard things isn’t it you know, these are just such heated, emotional moments and you look through the financial statements you’re given and you saw that the secretary got given a Burkin and you got given like, a bag from Tesco and you just want to let rip. And Emma, you talked about that sort of bad-mouthing on social media, where are the lines on that? Is it you can’t say anything or what’s the legal position from that side?
It all depends on the context and the content of what’s said online but also the impact of it. So, we talked about contempt of Court and publishing anything that breaches a reporting restriction. Of course, there’s a lot of information that can be disclosed, a lot of statements that can be published that fall far short of contempt but they can potentially get you into very tricky territory from a defamation perspective but also from a breach of privacy perspective.
Claire quite rightly talks about being very careful about keeping private and confidential information confidential, signing non-disclosure agreements. In my experience, people are much less careful with information the further they are away from the source. So, if a party in a divorce is allowed to vent or share with her friends or his friends, they are the weakest link, they are the people that are less invested in the process and often you have a kind of ripple effect of information that leaks out and is deemed to have less protection or less value the further it goes from the party who is disclosing it and that’s where trouble lies.
So, there is a standalone, there is a taut of misusing private information. In this, there are no fixed categories of what constitutes private information. It’s kind of, you know it when you see it. There are some things that are clearly private. So, the details of a person’s sex life or sexuality or their health or medical records but it can cover a whole wide range of information and it’s generally the sort of information that you tend to share with your spouse or your partner when you’re in a relationship with them and it’s the sort of information that you know and they know you ought to keep confidential afterwards. So, yes if information is shared online, even if it’s via your friends rather than you directly, that emanates from disclosure in the context of the divorce or from information you learnt within the relationship, you can open yourself up to charges of breach of privacy or misuse of private information.
The Courts look at a number of factors to determine the damages and the remedies. They look at the nature of the information and the level of intrusion that is experienced by the information being shared. They will also look at whether you’ve had a realistic expectation and to determine whether you have a realistic expectation of privacy, the Courts will look at how closely you guarded it; whether you spoke to others about it, whether it’s something that actually has been held discretely or if it’s been shared more widely. So, if you are quite guarded about your private life and you don’t speak with many people but you did speak to your ex-spouse and then it becomes something that’s speculated about online or is shared by them or their friends online, the Courts are more likely to consider that you had a realistic expectation of privacy which has been intruded upon by that disclosure. The Courts then have to balance when they’re considering whether there’s an actionable misuse of private information whether the intrusion can be justified by the other party’s right to express themselves. We all have two competing rights; we have a right to respect for our private life and correspondence and our family life but we also have a right to freedom of expression and to tell our side of the story. But when it comes to a person’s right to express themselves and tell their side of the story, the Courts are quite cautious not to allow people to take private information from private relationships and then misuse it going forward and this kind of right to sell your story is construed in quite a limited way.
But that balancing exercise is something that can be quite tricky for the Courts to determine and can lead to quite interesting conversations around whether an ex is seeking to expose hypocrisy for example or correct a false impression that a party has deliberately put out. And some of the cases that have involved a claim of misuse of private information that have been unsuccessful, have involved the disclosing party saying, ‘Well, it was incumbent on me to correct untruths or a false impression that you’ve put out that you are either a family person or an honest person and actually the private information that I’ve disclosed was necessary to disclose in order to address that misinformation’.
And that seems like, as you said, a real fine balance doesn’t it, between someone’s right to privacy and the other party saying, ‘I had a good enough...’ what sounded like, you’ve got to have a good enough reason to break that privacy, to expose whatever the point is.
Exactly. A really good example is the recent case of Meghan Markle who sued The Mail, in relation to the handwritten letter she wrote to her father before her wedding and the Court found there that it was clearly a private letter, talking about her thoughts and feelings, it was handwritten, it was - in the Court’s view – a personal piece of correspondence and they said, ‘Well, if we were to look at whether there was a countervailing public interest in disclosure, we need to think about the circumstances in which it would be okay for the media to report on a handwritten letter to someone’s father’. And they said, ‘Well, actually that public interest could arise if the newspaper were correcting a false account of the letter or exposing that she tried to mislead’, and the Judge in Meghan’s case said, that’s actually not what they were doing here. The article was not written for that purpose. It was written to titillate readers, to expose and embarrass The Duchess of Sussex. It went far beyond discussing whether earlier reports of the letter were correct and actually was a gross invasion of her privacy and a violation of her rights. So, it’s a reminder that even very public figures are not fair game, that there’s no blanket rule that if you’re setting the record straight then the publication is in the public interest that you have a right to express yourself. Whilst every case turns on its own facts, the Court will look very carefully at whether you have a realistic expectation of privacy in relation to certain information and whether that competing right of freedom of expression has been or could have been, properly engaged.
Hmm. I mean, that’s one thing when you’re talking about the right to privacy of the parties to the marriage but as we sort of said in the introduction there’s frequently children involved and so you’re worried about the privacy of those sort of third parties as well. How will the Courts interpret that situation when we’re looking at the privacy of the children?
So, children have their own standalone rights in privacy and the child’s right to privacy may be affected by the activities of their parents. So, it’s rarely a child’s or a young child’s decision whether they are seen out in public with famous parents or whether they attract public gaze. But if a parent later tries to complain about intrusion, or press intrusion around their children, the Courts will look at the parents’ behaviour, considering whether that child has a realistic expectation of privacy. To give you a couple of examples to show you the two extremes. JK Rowling, the author, brought a case in relation to the publication of some photographs of her infant son on the street whilst he was out with his family and the Courts agreed with her that even though the pictures were quite anodyne, that they infringed his rights. They reached that decision because she had taken the deliberate step of keeping her children out of the public gaze. She never took them to book launches, she didn’t expose them to public view or to publicity, she never discussed the details of her private life or her family in interviews and she never put pictures of her children online. By contrast, a case where an anonymised mother brought proceedings against The Daily Mail, went against the mother. She was complaining about the publication of pixelated pictures of her young child and complaining that those pictures intruded upon her child’s private life. The picture accompanied an article that reported on allegations of her father being a philandering politician. Because the mother had spoken publicly about the child’s paternity and, in the Courts’ view, had disclosed private information relating to the children, her complaint wasn’t upheld. The Courts thought that the photos should be taken down from the article but the article relating to the questions about the child’s birth could continue to be published and that the child’s expectation of privacy in relation to that information had been eroded by her parent’s action.
Well, for now, let’s wrap up there. I would like to say thanks so much to Emma and Claire for joining me for this Mishcon Academy Digital Sessions podcast. I’m Charlie Sosna and do look out for the next episode in this series where we will be discussing the rights of parents to objecting to their co-parents sharing details of their child’s life on social media. And how you tackle the most serious and criminal breaches of privacy, such as revenge porn.
The Digital Sessions are a series of online events, videos and podcasts all available at mishcon.com and if you have any questions you’d like answered or suggestions of what you’d like us to cover, do let us know at firstname.lastname@example.org.
Until next time, take care.
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