Jagger v Darling & Ors

When an interim injunction would affect freedom of expression, the court must be satisfied that the claimant is likely to establish at trial that publication should not be allowed, as required by section 12(3) of the Human Rights Act 1998. The court must balance the claimant’s reasonable expectation of privacy against any Article 10 rights. A person may retain a privacy remedy despite misconduct where the conduct was not sufficiently immoral to defeat the claim. Publication of intimate CCTV images may properly be restrained where dissemination serves no legitimate public interest and would principally cause humiliation. The relevant publication is the recording or copies of it, rather than written accounts of what it allegedly shows.

Elizabeth Jagger sought interim orders restraining John Darling and other described persons from disclosing or publishing CCTV footage, or copies and extracts, showing sexual activity involving her at a nightclub. She also sought preservation orders, a witness statement from Mr Darling, and ancillary service directions. Her claims relied on copyright assigned to her by the nightclub owner and misuse of private information under Article 8. The application was heard on the claimant’s evidence and submissions alone. The central issue was whether the court could restrain further publication before trial in light of Article 10.

1. The court granted the interim orders restraining disclosure, publication, republication, syndication, use and communication of the CCTV recording, copies and extracts. The defendants were also required to preserve relevant items, and Mr Darling was required to provide a verified witness statement concerning the recording.
2. Under section 12(3) of the Human Rights Act 1998, because the order could affect Article 10 freedom of expression, the court had to be satisfied that the claimant was likely to establish at trial that publication should not be allowed.
3. On the present evidence, the claimant had a legitimate expectation of privacy. She had not appreciated that her conduct would be observed or electronically recorded. Her conduct, although capable of being described as misconduct in a general sense, was not sufficiently immoral to prevent her seeking relief.
4. The balance between privacy and freedom of expression fell firmly in favour of restraint. The court could identify no legitimate public interest in further dissemination of intimate images which would serve only to humiliate the claimant for the prurient interests of others.
5. The order concerned publication of the recording, or copies and extracts of it, rather than written accounts of what the recording was alleged to disclose. The ruling was expressly provisional because only the claimant’s case had been heard, and the parties retained liberty to apply to discharge the order.

not stated in the judgment.