Outing & threats to disclose sexual orientation — your legal protections explained

Being open about sexuality is an important part of living authentically for many people. For others, it remains something that they choose to share only in certain contexts. While in general terms the law protects both choices, our reputation management team has seen an increasing number of matters involving threats to disclose information about an individual's sexuality.

Such threats often arise following the breakdown of relationships, business disputes or other personal disagreements. In some cases, the threat of disclosure is accompanied by demands for money or other concessions. What may appear to be an interpersonal drama can quickly raise complex issues of privacy and confidentiality law, data protection and reputation management.

Here, Eleri Gibbs outlines the legal protections that may be available if you face a threat to expose personal information such as your sexual orientation.

Not every ‘truth’ is free to publish

A common misconception is that if information is true, it can always be shared freely. English law takes a far more nuanced approach. The law of privacy is founded on the principle that individuals may retain control over certain categories of personal information and others aren’t free to use it as they see fit — even if they don’t make false statements about it. The position is fact-dependent.

However, before the emergence of modern privacy law, individuals had relatively few legal tools available to prevent disclosure of information concerning their sexuality. In some circumstances, claimants turned instead to defamation law.

One notable example is Donovan v The Face [1992]. The case arose after The Face magazine published an article suggesting that Jason Donovan — a famous soap star and singer — was homosexual and had misled the public by presenting himself as heterosexual. The claim succeeded — not because homosexuality was treated as inherently defamatory in isolation but because within the social and media context of the early 1990s, the article was understood as portraying Donovan as being dishonest, hypocritical and commercially manipulative. The High Court jury found in Donovan's favour and awarded damages. The case is now principally useful as an illustration of changing social attitudes and the movement away from treating sexuality itself as a reputational stigma. In modern claims, the focus is more likely to be on personal autonomy and the right to control when, how and to whom private information is disclosed.  

In the seminal case of Campbell v MGN Ltd [2004], Naomi Campbell successfully challenged the publication of details concerning her attendance at Narcotics Anonymous meetings, together with photographs taken outside a treatment session. While the House of Lords (which was the highest appeal court before the Supreme Court was established) accepted that some reporting relating to her drug use was justified, it held that the additional information regarding her treatment and recovery engaged her right to privacy. The paparazzi images used were deemed to be intrusive.

The Campbell case does not concern information about sexuality and sexual orientation, but it was a watershed moment in the development of privacy law in England and Wales.  The case would go on to be relied on by many people in cases concerning their sexuality and private life. 

The central question in many privacy claims is whether the individual had a “reasonable expectation of privacy” in relation to the information concerned and whether such rights outweigh the rights of others to publish or disclose that information. 

Sexuality & legal rights to privacy explained

Information relating to sexuality, sexual orientation and a person’s intimate relationships sits close to the core of what the court regards as a person’s private life. The principal legal protection derives from Article 8 of the European Convention on Human Rights, which safeguards the right to respect for private and family life.

The courts have consistently recognised that sexual orientation forms part of an individual's identity, dignity and personal autonomy. As a result, attempts to expose or ‘out’ someone against their wishes are very likely to engage core privacy rights.

An important court case that considered privacy rights concerning sexual activity was PJS v News Group Newspapers Ltd [2016]. The Supreme Court upheld an injunction preventing the publication of details relating to a well-known entertainment figure's consensual sexual activity. The Court rejected arguments that widespread discussion on social media and overseas websites had extinguished any reasonable expectation of privacy, concluding that publication by the mainstream press would cause additional and significant harm.

The case provides an important reminder that privacy rights don’t necessarily disappear simply because information has entered the public domain or online rumour.

The courts have also recognised that disputes concerning sexuality and relationships often sit at the intersection between privacy rights and claims of public interest. In Lord Browne of Madingley v Associated Newspapers Ltd [2007], later considered by the Court of Appeal, the former BP chief executive sought to restrain the Mail on Sunday from publishing information supplied by a former partner following the breakdown of their relationship. The case recognised that information shared within an intimate relationship may attract protection through the law of confidence and privacy. However, it also demonstrated that Article 8 rights may be weakened where the proposed publication concerns matters that are capable of contributing to a genuine public-interest debate, including allegations connected (in this case) with a senior public-facing business figure's conduct and use of corporate resources. The case therefore establishes a useful caveat: relationship information may be private on the face of it but the court will still undertake a careful balancing exercise where Article 10 (freedom of expression) considerations are engaged. 

Public interest or ‘just gossip’?

Privacy rights aren’t absolute. Courts must balance Article 8 rights against Article 10 rights, which will typically attract greater weight where publication contributes to a genuine debate of public importance. Matters involving public office, misuse of public funds, criminality, wrongdoing affecting the public or significant hypocrisy by public figures may justify intrusion into an individual's private life. By contrast, the courts consistently distinguish between information that’s genuinely in the public interest and information that is merely ‘of interest to the public’. The fact that information may attract readership, generate online discussion or satisfy public curiosity will not, by itself, justify publication.

It isn’t unusual for ‘public interest’ justifications to be raised to support the disclosure of information about sexuality.

The distinction between what is and isn’t in the public interest was central to the case of Mosley v News Group Newspapers Ltd [2008]. The News of the World published covertly recorded footage of former FIA (the governing body for Formula 1) President Max Mosley engaging in private sexual activities, arguing that publication was justified in the public interest. The High Court accepted Mr Mosley’s legal complaint, holding that there was no legitimate public interest in exposing consensual sexual conduct simply because it was perceived as being controversial, unusual or likely to attract readers.

The same principle often applies in cases involving sexuality. Curiosity, gossip or the potential for embarrassment will rarely justify publication.

Enhanced protections for information about sexual orientation

Potential protection isn’t confined to privacy law. Under the UK GDPR, information revealing a person's sexual orientation is classified as special category data. Organisations seeking to process or disclose such information must therefore meet more stringent legal requirements than those applying to ‘ordinary’ personal data.

The importance of safeguards is clear in an age where information can be shared instantly across IT systems, messaging platforms, social media and websites. An unauthorised disclosure can have far-reaching consequences and affected individuals may have recourse under data protection legislation as well as privacy or breach of confidence.

The main issue may not be whether the data is accurate but rather whether it’s being used in a fair way.

The enhanced protection afforded to information about sexual orientation reflects a broader legal principle: individuals should, in general terms, retain control over whether, when and to whom deeply personal aspects of their private lives are revealed. Together, data protection and privacy law provide an important framework for safeguarding that autonomy. Of course, other legal causes of action — such as breach of confidence — can also come into play too.

‘Outing’ & threats to expose personal information 

Some cases involve more than the threatened publication of private information. We increasingly encounter situations where individuals threaten to reveal information about another person's sexuality unless certain demands are met. Such conduct can give rise to both civil and criminal law considerations.

In practice, threats to disclose sexuality can often be less about freedom of expression and more about coercion. The threatened exposure of deeply personal information is used by some individuals as leverage in disputes involving money, business, employment, family relationships or reputation. In appropriate cases, the conduct may engage not only civil causes of action based on privacy and confidence but also criminal offences such as blackmail.

From a civil law perspective, victims may be able to obtain urgent injunctive relief to prevent disclosure before it occurs. Speed is usually critical. Once information has been published online, from a practical perspective complete removal may become more difficult, even where the claimant ultimately succeeds in a legal complaint. These cases can also involve complex relationship histories and interactions between the respective litigants. 

The law doesn’t necessarily treat every aspect of a relationship as being private. In Donald v Ntuli [2010], the Court of Appeal considered an injunction obtained by Howard Donald — a member of Take That — against his ex-girlfriend Adakini Ntuli, following the end of their relationship. The Court allowed the substantive injunction to remain in place to prevent publication of intimate, personal or sexually explicit details, including information of a non-sexual but still personal nature. However, it refused to extend the protection to prohibit disclosure of the mere fact that a relationship had taken place. The case illustrates an important distinction frequently encountered in modern privacy disputes: there’s often a significant difference between revealing that two people were involved in a relationship and revealing the intimate details of what occurred during their relationship. 

This preventative focus can differentiate privacy litigation from many defamation claims. In some cases, the primary objective isn’t vindication or compensation after publication but rather to prevent disclosure altogether.

Control your own story

Society has become significantly more accepting and understanding of diverse sexual orientations. In general terms, the law allows individuals to control for themselves when, how and to whom information about sexuality is disclosed.

However, if you receive a threat from a former partner, disgruntled contact, online influencer or would-be blackmailer, the available legal protections can be robust. Privacy law, data protection law and reputation management frequently overlap in this area, creating a range of remedies for those facing unwanted behaviour.

Our experienced and award-winning reputation management team advises on highly sensitive issues such as adverse media interest or online attacks. Instructing our team will put a protective barrier between you and whatever threat you’re facing. We’re vastly experienced in liaising with journalists, news publications and well-known websites on behalf of our clients. We also act for private members of the public who need legal support in challenging times. We can help you to control the narrative and protect your position.

If you need our help, call us now on 0333 004 4488, send us an email at hello@brabners.com or complete our contact form.