A v B plc (Confidential information)

In an interim claim to restrain publication of private information, the court must give proper weight to both privacy and freedom of expression. Under Human Rights Act 1998, section 12, publication is not to be restrained unless the applicant is likely to establish at trial that it should not be allowed. Interference with the press requires justification; it is not conditional on the publisher proving a distinct public interest.

Confidentiality depends on the whole relationship and circumstances. Sexual intimacy is relevant but does not itself secure equal protection for every relationship. Where one participant wishes to disclose a transient relationship, the other participant's claim to preserve a shared confidence is weakened. An injunction is inappropriate where a permanent restraint would be most unlikely and would unjustifiably interfere with press freedom.

A, a married professional footballer, obtained an interim injunction restraining B, a newspaper, from publishing information supplied by C and D about their sexual relationships with him. A sought to prevent disclosure which might harm his marriage and family.

Jack J initially granted the injunction. He later discharged it for material non-disclosure, reopened that decision and restored the injunction, and then reimposed it in narrower terms after considering the merits. B appealed both the reopening decision and the later merits decision.

The central issue was whether A was likely at trial to obtain a permanent injunction restraining publication, having regard to privacy, confidence and freedom of expression.

1. The substantive appeal was allowed and the injunction was set aside. The court, in a judgment delivered by Lord Woolf CJ for the court, held that the cumulative flaws in Jack J's approach led him to the wrong result.

2. An interim injunction against publication is discretionary. Under Human Rights Act 1998, section 12(3), the applicant must be likely to establish at trial that publication should not be allowed. The court must give particular weight to freedom of expression and, in the case of journalistic material, to the matters specified by section 12(4). The starting point is that press publication should not be restrained unless interference is justified.

3. Articles 8 and 10 of the European Convention are accommodated through the equitable action for breach of confidence. A duty may arise where the recipient knows or ought to know that privacy can reasonably be expected. However, the existence of a private interest or of confidence does not itself justify an injunction. The court must balance the competing rights in the circumstances of the individual case.

4. Jack J wrongly treated A's transient relationships with C and D as attracting the same protection as sexual relations within marriage. The degree of confidentiality depended on the nature and stability of the relationships, the fact that C and D wished to disclose them, and the press's freedom of expression. The court adopted the approach in Theakston v MGM Limited, [2002] EWHC 137 (QB), that such relationships lay at the outer limit of those capable of legal protection.

5. A's entitlement to confidentiality was modest. It was most unlikely that a permanent injunction would be granted after trial. Restraining B would therefore be an unjustified interference with press freedom. The proposed publication's taste or literary quality was not for the court to police.

6. The court did not determine the procedural appeal. Its questions had become academic in light of the substantive outcome.

• Court of Appeal (Civil Division) Allowed B's substantive appeal, set aside the interim injunction, and declined to determine the procedural appeal because it was academic.
• Queen's Bench Division Jack J initially granted an interim injunction, later discharged and then restored it, and ultimately reimposed it in narrower terms on the merits.