Pictures of the Queen's breakfast table may sell newspapers, but do they breach her human rights? Penny Lewis and John Eastlake explain

The saying that life is too short to know what someone ate for breakfast is untrue of celebrities in general and Her Majesty in particular. Thanks to the Daily Mirror the public knows that the Queen is served cereal in Tupperware boxes. An innocuous, perhaps endearing detail, but one which Her Majesty may regard as an intimate aspect of her private life not to be revealed to outsiders.

Do humdrum facts amount to information capable of protection on grounds of confidentiality?

Human rights barrister Rambert de Mello recently represented Lady Archer's former secretary in proceedings concerning this issue. He says the starting point is whether privacy is covered by the employment contract. Employers are best protected if they identify categories of information that should not be disclosed during or after the retainer.

With high profile figures there is likely to be argument that disclosure was in the public interest. This can precipitate a Human Rights Act debate. De Mello observes a "tension between the right to respect for private life within Article 8 and the right to freedom of expression contained in Article 10".

Resolving these competing rights involves a balancing exercise and determining what kind of information is at stake. He adds that the test "is whether the material sought to be disclosed has the necessary quality of confidentiality. Certain categories of information such as medical or financial would need protection and a court might be persuaded not to order publication".

However there might be a "presumption of disclosure of trivialities which don't deserve protection, because they are not sufficiently significant". Accordingly, innocuous items such as photographs of a breakfast table may not "possess a sufficient confidential texture" to invoke the cloak of confidentiality.

But, obtaining a job by deception might count. So, how could a journalist inveigle his way into the royal household? There would be a check on references, although, curiously, there is no legal obligation to provide references. The only reported cases involving withholding them are where sex or racial discrimination is alleged, such as Coote v Granada Hospitality [1999]. The leading case - Spring v Guardian Assurance [1995] - emphasises that if someone opts to give a reference it must be compiled with reasonable and proper care and be accurate and fair.

Certainly you should not improperly undermine a candidate by a quiet chat to prospective employers. Substantial damages are awarded for negligence or malicious falsehood.

  • Penny Lewis and John Eastlake are with Plexus Law
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