“SEXUAL PROCLIVITIES” TAPE-RECORDING STAYS WHERE IT IS

The Court of Appeal yesterday ruled on the status of confidential conversations tape-recorded by one person without the knowledge or consent of another. In L v D (the parties’ names were concealed for the sake of privacy) the claimant recorded conversations with the defendant, a musician/songwriter she used to live with, for the purpose of her protection in relation to domestic violence proceedings. In a subsequent legal action the claimant sued the defendant for a share in his home. Giving evidence, the defendant mentioned his sexual proclivities, including an “additional aspect” which he sought to keep private. Subsequently the defendant applied for an interim injunction to stop any use of the claimant’s recordings. The trial judge refused the injunction and the Court of Appeal dismissed the defendant’s claim.

According to the Court of Appeal, where a tape recording is made by one person of a private conversation but without the consent of the other, equity imposes a duty of confidence in relation to the recording which is separate from any confidentiality in the information revealed in the recording. This is because, in similar fashion to a photograph, the recorded details of the words of a private conversation could make more impact, and cause greater embarrassment and distress, than a mere account of the conversation in question. Equity imposes on the conscience of a person who secretly takes recordings of a private conversation an obligation not to use those recordings for any other purpose. In this case, however, the claimant did not plan to use the recordings for any purpose except that for which she had obtained them. What was more, she had made no attempt to publish the recordings. This being the case, the defendant was not entitled to the relief he sought.

This blog is based on an note published on the Butterworths Lexis Nexis Direct subscription-only service, details of which are available here. The same case is also available from Thomson's Lawtel subscription service under the name D v L. The case's neutral citation number is [2003] EWCA Civ 1169.
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