Reflections on The Split – S2, E5: Sex tapes, bugging and workplace relationships

11 March 2020

So last night we saw the penultimate episode of The Split.  Having not personally seen series 1 of this BBC show, and only managing to hold on for the first 15 minutes of the Oscar nominated Marriage Story, hand on heart, I was a little sceptical - but now I’m hooked!

In this episode, the fallout from Hannah and Christie’s affair continues to escalate. The sex tape (containing images of Fi, her husband (Richie) and the nanny) has been leaked to the tabloids; Fi spent the night with her lawyer, Christie, which was subsequently discovered by Richie who has bugged Fi’s house; Richie “abducted” Hannah and Nathan’s children to a rock concert; and Nina, a mum-to-be, faced up to her alcohol addiction.

Sex tape scandal – what to do when the cat is out of the bag?

Every relationship has its skeletons and when they break down and emotions are running high, people can look to hurt and lash out (often but not always the spouse – in this case it was Richie’s aggrieved PA). This behaviour can come in all shapes and sizes: threatening to expose “truths” to senior bosses, going to the press to “tell all”, or as in Fi’s case the leaking of a sex tape!

The cat is out of the bag, the sex tape has been leaked and published online by the tabloids. Fi is one half of one of the country’s biggest celebrity couples, so does she have a right to privacy? Yes, everybody has the right to respect for their private and family life but this must be balanced with the right to freedom of expression. Therefore, in deciding whether Fi has a reasonable expectation of privacy in the sex tape, the Court will take various factors into account, including the way Fi has conducted herself publically.

Fi should immediately instruct her lawyers to contain the leak to protect her reputation. It may be necessary for Fi to apply to Court for an interim injunction preventing further publication of the sex tape. This may still be possible, even in circumstances where the sex tape has already been published online. Fi would need to act quickly as applications for injunctions must be made without delay. I should also mention that disclosing private sexual photographs and films is the offence we all recognise as Revenge Porn and so a report to the police may also be an option.

Bugging – is it ever a good idea?

With the increasing sophistication of modern covert recording equipment (and relative ease with which they can be obtained), Richie bugging Fi’s house with cameras, whilst scandalous, is not surprising.

However, evidence obtained through covert recording may not be admissible in a family court, and in some cases it can be unlawful. There is no specific criminal offence that covers the use of covert recording devices. However, Richie’s decision to bug Fi’s home could constitute a course of conduct amounting to harassment and stalking or under certain circumstances, voyeurism. It  could also provide more evidence of Richie’s coercive and controlling behaviour, an issue highlighted in Cate’s blog on episode 3 and also in our previous blog covering these issues.

The legal costs consequences can quickly snowball. Putting aside the potential criminal litigation proceedings, Fi could look to:

  1. obtain an interim injunction to prevent the use of and dissemination of the recordings;
  2. obtain a non-molestation order under the Family Law Act; or
  3. seek further orders from the family Court dealing with the admissibility of the recordings, should Richie seek to rely on them.

Far from helping Richie’s case, the bugging may in fact have damaged it, and he could find himself on the wrong end of a number of costs orders.

Litigants should be very careful before taking such measures. Often the evidence gleaned from the covert recordings will do little to further their case, and the family courts have a broad discretion in both children and financial proceedings and will have such behaviour in mind when considering the outcome of the case.  

Workplace relationships – a health warning

Hannah and Christie’s affair comes to a head in this episode.  But theirs is not the only relationship within Noble Hale & Defoe – Zander surprises everyone when he announces he is not only dating but getting married to Tyler. Richie is also accused of sexual misconduct by a number of the people working with him.

Two years on since the start of the #MeToo movement with the spotlight very much on sexual misconduct in the workplace, relationships at work continue to be an area of real focus.  One of the more recent cases in the press involved Steve Easterbrook, CEO of McDonalds, who was dismissed after dating an employee and “violating company policy” and showing “poor judgement”. 

There is nothing specifically within the law that prevents two people entering into a relationship at work.  However, it can cause management difficulties and the fallout when it goes wrong can play out in the context of claims of sexual harassment, discrimination and unfair treatment in the workplace. Companies are now becoming far more cautious, with many having tight policies in place - some requiring relationships are declared and others banning them completely.  See our recent blog on this topic.

Perhaps Ruth Defoe, the matriarch of Noble Hale & Defoe, should look closely at the policies they have in place in readiness for season 3!

This blog was co-written with Siân Akerman, an associate in our dispute resolution team, and Catherine Bourne, an associate in our employment team.

Further information

If you would like to speak to a member of our family and divorce, reputation and media, dispute resolution, employment and/or criminal litigation teams about any of the issues raised in this blog or through storylines featured in The Split, please contact us or call us on +44 (0)20 7814 1200. Alternatively, click here to get started online and find out where you stand.

You may also be interested in reading our previous blogs with our reflections on the first series of The Split.

Connie Atkinson, a Senior Associate in our family and divorce team, has been one of the legal advisers on the script of The Split, series 1 and 2.

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