A v B & Ors

An interim privacy injunction requires the claimant first to show that the proposed publication concerns personal information in respect of which there remains a reasonable expectation of privacy. That assessment is fact-sensitive. A claimant’s voluntary disclosures may reduce the continuing scope of protection, but publicity does not automatically remove the right to privacy. The court must then consider whether an injunction is likely to protect the right effectively and satisfy the likelihood requirements under Human Rights Act 1998, section 12. Broad or vague restraints are inappropriate, particularly where publication is imminent and the proposed order would materially restrict freedom of expression. The application failed because the claimant had not established a reasonable continuing expectation of privacy, an effective injunction, or the necessary likelihood of success.

The claimant sought urgent interim relief against his wife and the publishers of United States and United Kingdom magazine editions. He wished to restrain publication of allegations concerning his health, drug use and rehabilitation, relationships, finances, marriage and related matters. The application developed during the hearing and the proposed order remained broad and imprecise.

The principal issues were whether the claimant had shown that publication was imminent and concerned information protected by privacy or confidence, how his own previous media disclosures affected any continuing expectation of privacy, and whether an injunction would be effective and justified under article 10 and section 12 of the Human Rights Act 1998. The application against the publishers was refused.

1. Threshold issue. The claimant bore the burden of showing, at least in general terms, what the publishers were likely to publish and that it was personal information in respect of which he retained a reasonable expectation of privacy. It was insufficient to identify only broad categories such as health, drug use or marital affairs. A proposed restraint also had to identify with reasonable precision what conduct was prohibited.
2. Effect of prior publicity. The claimant’s own voluntary revelations were relevant at the threshold stage, not merely to later proportionality. They could reduce the information in respect of which privacy could reasonably be expected. The assessment was case-specific. Publicity did not automatically deprive a public figure of privacy, and further information concerning the same subject matter was not necessarily free for publication. Relevant considerations included whether the information itself, similar behaviour, or allegations involving others had already entered the public domain.
3. Interim relief and proportionality. The court had to keep distinct the questions whether article 8 was engaged and whether relief should be granted after balancing the competing article 8 and article 10 rights. Under section 12 of the Human Rights Act 1998, the claimant ordinarily needed to show that he was more likely than not to obtain relief at trial, subject to exceptional circumstances such as particularly grave consequences or a short-lived order needed to preserve the position.
4. Application. The proposed injunction was broad and uncertain, and relief against the United States publisher was unlikely to prevent online publication in England. The claimant failed to establish a reasonable and continuing expectation of privacy, that an injunction would effectively protect his rights or prevent significant harm, or that the criteria identified in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 could be met. The application against the second and third defendants was refused.