DFT v TFD

Interim restraint of publication affecting freedom of expression requires a sufficiently favourable prospect that publication will be prohibited at trial. In privacy cases, the court must first decide whether the claimant has a reasonable expectation of privacy engaging Article 8. If so, it must balance Articles 8 and 10 by focusing intensely on the competing rights and applying proportionality to each. Information being interesting to the public is insufficient; publication must serve a genuine public interest. Where alleged blackmail is supported by cogent evidence, the expression rights of the alleged blackmailer may be extremely weak. Anonymity may remain necessary, but prohibition of reporting the fact of an injunction is required only where the other terms of the order do not adequately prevent identification or frustrate the remedy.

The applicant sought continuation of an interim injunction restraining publication of private and confidential information concerning a sexual relationship between the parties. At an earlier without-notice hearing, the court granted a seven-day injunction, ordered anonymity, restricted access to confidential material, and prohibited reporting of the proceedings. The respondent disputed the allegations but consented pragmatically to continuation until trial or further order. Media organisations raised concerns about private hearings, anonymity and reporting restrictions. The return-date issues were whether the applicant was likely to establish at trial that the information was private and confidential, whether publication should be restrained under section 12 of the Human Rights Act 1998, and which protective provisions remained necessary.

1. The interim injunction was continued. The court was satisfied that the applicant was likely to establish at trial that publication should not be allowed. The threshold under section 12 of the Human Rights Act 1998 required a sufficiently favourable prospect of success, ordinarily meaning that success was more likely than not: [2005] 1 AC 253.

2. At the first stage of the privacy inquiry, the information concerned private sexual encounters between consenting adults at the applicant’s home. It was not connected with public functions or the applicant’s profession, and was known only to a few people. The applicant therefore had a reasonable expectation of privacy engaging Article 8. The relevant assessment was broad and fact-sensitive, including the claimant’s attributes, the nature and location of the activity, the purpose of the intrusion, consent and its likely effect: [2009] Ch 481, [2004] 2 AC 457.

3. At the second stage, neither Article 8 nor Article 10 had precedence. The court had to focus intensely on the comparative importance of the specific rights, consider the justification for restricting each right, and apply proportionality: [2005] 1 AC 593. The evidence supported the conclusion that disclosure would fulfil a blackmailing threat. The respondent’s expression rights were therefore extremely weak, if engaged at all.

4. The information already in the public domain did not show waiver of privacy or provide a public-interest defence. Public interest was an aspect of proportionality, and mere public curiosity was insufficient: [2008] Ch 57.

5. The proceedings remained anonymised. Identification by name created a serious risk that the protected information would emerge and that the injunction would be defeated. The court accepted the public interest in preventing blackmail and encouraging victims not to submit to it.

6. It was no longer necessary to prohibit publication of the fact that the order had been made. That issue required assessment of each provision in the context of the protection supplied by the other terms. A proviso clearly delineating what information about the order could be published reduced the risk of jigsaw identification to a minimal level. The final order therefore maintained anonymity and the existing restrictions while permitting publication limited to information contained in the judgment.

This was a first-instance return-date hearing. At the earlier without-notice hearing on 9 September 2010, a seven-day interim injunction was granted. On the return date, the injunction was continued with amended reporting provisions.