Mahmood v Galloway & Anor

Under section 12 of the Human Rights Act 1998, an interim injunction restraining publication should not be granted unless the claimant’s prospects at trial are sufficiently favourable in the circumstances. The court may apply a lesser threshold where grave consequences or a short-lived order pending an appeal make that appropriate.

A photograph of an investigative journalist, obtained and used for work rather than private or domestic purposes, does not ordinarily attract a reasonable expectation of privacy or a right of confidence. General public benefit in protecting the journalist’s identity cannot itself create such a cause of action and must be weighed against freedom of expression. The injunction was therefore refused.

Mazher Mahmood sought continuation of an overnight injunction restraining George Galloway MP and Ron McKay from publishing photographs identifying him. The application concerned privacy, confidence, Article 8 rights, the public interest, copyright-related privacy rights and data protection.

The defendants argued that section 12 of the Human Rights Act 1998 prevented further interim restraint because the claimant was unlikely to establish at trial that publication should be prohibited. The central issue was whether the photographs were private or confidential and whether any statutory or Convention-based right justified continued restraint.

1. Interim restraint. Applying section 12 of the Human Rights Act 1998, the court held that the general test was whether it was more likely than not that an injunction would be granted at trial. The test was flexible. A lesser degree of likelihood could suffice where the consequences of disclosure were particularly grave or a short-lived injunction was needed to enable proper consideration of interim relief pending trial or appeal. On the evidence, no further short-term injunction was initially necessary.
2. Privacy and confidence. The principles stated in Campbell v MGN Ltd [2004] 2 AC 457 were applied. The relevant question was whether the claimant had a reasonable expectation of privacy. The first photograph was obtained for an investigative journalistic purpose, not a private or domestic purpose. Its publication would hinder the claimant’s work, but that was not an interference with private life.
3. The second photograph was likewise not private. On the accepted provisional account, it had been taken by the person whom the claimant was investigating, or at a social occasion, and the claimant was aware of the circumstances. The reasoning in Hanover v Germany [2005] EMLR 379 concerned photographs of ordinary domestic activities and was distinguishable.
4. Section 85 of the Copyright Designs and Patents Act 1988 did not assist because neither photograph had been commissioned for a private and domestic purpose. A general public interest in protecting the claimant’s identity could not itself establish privacy or confidence. It was only a factor to be weighed against the defendants’ Article 10 rights.
5. The data protection claim did not provide a basis for an injunction. The statutory remedies identified by the court were unavailable on the facts at that stage. The claimant was therefore unlikely to succeed at trial and the injunction was refused. The defendants obtained their costs of the application, and the injunction was continued only until 4 pm the following day to permit an application to the Court of Appeal.