Privacy laws offer City folk protection

WARREN Buffet once said: “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently”. A professional reputation, much like a brand or business reputation, also takes many years to build and demands considerable further investment to nurture and grow. Such a reputation, if damaged, will be costly, and in some cases, virtually impossible to restore.

A company or individual is entitled to construct and project a public image. Equally, the business or person in question is justified in drawing a clear line between what is private or confidential and what is not. This is increasingly happening to City workers and we are now experiencing a rise in the unwitting City celebrity – the banker or fund manager who has found himself caught in the glare of the public eye. It is becoming increasingly common to see a photograph of the house or even the children of a previously anonymous City worker published alongside a story about his bonus, or acrimonious divorce. Fred Goodwin and Adam Applegarth are just two examples. No doubt we will see more as this year’s bonuses are announced.

City folk might feel that they are unprotected, that only film stars and singers can use the law to protect their privacy. But that is not so. Intrusions – as well as being actionable – are a breach of the media’s own code of conduct. In practice, the ever expanding law of privacy and confidence means that obtaining injunctions to restrain the publication of private information is increasingly commonplace.

Perhaps the cases where businesspeople have most obviously faced media interest are divorce cases. You cannot fail to have stumbled across lurid details of the lives of Lisa Tchenguiz and property magnate Vivian Imerman, for example, as they work through their divorce. This interest has been further fuelled by the opening of the family courts in April 2009. Historically, such hearings were held in private, a luxury that couples can no longer enjoy as a matter of course.

Many people are now unaware that journalists can legitimately attend the hearings and that unless prevented from doing so, freely publish information gleaned in these courts – anything from finances (income, spending, debts and liabilities), to allegations made about the parties’ conduct during the marriage, including sensitive details of a personal nature.

In a bid to prevent this intrusion, those in the know are seeking ways of resolving relationship breakdowns without recourse to legal proceedings. There has been a significant increase in couples entering into pre-nuptial or post-nuptial agreements to settle financial arrangements in advance – however it is worth bearing in mind that pre-nups are not currently legally binding in this country. It is likely that a forthcoming Supreme Court judgment in the case of German heiress Katrin Radmacher will clarify England’s position on the pre and post-nup agreements and the prevailing prediction is that this ruling will, at the very least, make them more persuasive.

Pre-nups, if prepared properly and with sound advice, do provide an opportunity to tackle potential privacy issues head on, through the inclusion of confidentiality clauses – a tactic that Lisa Tchenguiz and Vivian Imerman may now wish they had deployed. In addition to entering into a pre-nuptial agreement, couples can also resolve disputes privately, outside of the court arena, by employing structured, confidential negotiations, mediation or binding arbitration and by using court-assisted conciliation hearings (which are closed to the media) if court assistance is required.

Where possible, if court hearings are unavoidable, media targets should obtain an order excluding the media. If there is media interest or a threat of publication, swift preventative action is needed and a privacy injunction can be obtained. However, judges must walk the tightrope of balancing the right to publish such information – though personal – if it is in the public interest, against an individual’s right to privacy as enshrined in article 8 of the European Convention on Human Rights. Arguably, since the media now has a clear right to attend court hearings, this balancing act is all the more challenging in the context of matrimonial proceedings that unfold in the family division.

Whatever the context of the invasion of privacy, be it via the divorce courts, or simply as a result of the backlash against bankers and their salaries, publicly known figures who wish to preserve their reputations and privacy do, in the main, have the law on their side. In fact, the law of privacy has never been stronger. People simply need to be more aware of how to use it.