KGM v News Group Newspapers Ltd & Ors

An application to restrain publication of personal information requires a two-stage analysis. The claimant must first establish a reasonable expectation of privacy. The court must then conduct an intense focus on the competing Article 8 and Article 10 rights and determine whether restriction is necessary and proportionate. A bare fact concerning a family relationship may attract Article 8 protection, but it does not necessarily carry a reasonable expectation of secrecy. Public interest in exposing alleged wrongdoing, or in preventing a misleadingly incomplete account of public events, may outweigh privacy interests. Section 12(3) of the Human Rights Act 1998 requires an interim applicant to show that he is likely to obtain a permanent injunction at trial.

The applicant sought an interim injunction against three newspaper groups to prevent publication of information about a long-standing second family. The application followed an earlier injunction and a public dispute between the applicant and Gordon Ramsay, with whom the applicant had recently been associated in business.

The first and second respondents did not intend, or had not shown an intention, to publish the relevant information. The substantive application was therefore directed principally against News Group Newspapers, whose proposed publication was said to concern both the applicant’s family circumstances and alleged misuse of corporate funds. The central issues were whether the applicant had a reasonable expectation of privacy and, if so, whether the competing public interests justified publication.

1. Applications against MGN Ltd and Associated Newspapers Ltd. The applications were dismissed because the applicant produced no substantive evidence of an intention or threat to publish. An unwillingness to give an undertaking was insufficient to establish an apprehended wrong.
2. Applicable framework. Following Campbell v MGN Ltd [2004] 2 AC 457 and Re S (A Child) [2005] 1 AC 593, the court had to determine first whether the information attracted a reasonable expectation of privacy. If so, it had to undertake an intense focus on the competing Article 8 and Article 10 rights and decide whether restraint was necessary and proportionate.
3. Reasonable expectation of privacy. Article 8 was engaged, but the proposed publication concerned only the bare fact of the second family, not intimate details of the relationship. The existence of a family connection could involve a relatively low degree of intrusion. In the circumstances, the applicant had not established a continuing reasonable expectation that the fact should remain secret.
4. Balancing exercise. There was no inherent public interest in the bare fact of the second family. However, there could be a public interest in exposing alleged breach of fiduciary duty or misappropriation of corporate funds, and in preventing the public from receiving an unduly slanted account of a public dispute. The applicant could not use privacy law to prevent publication of allegations which the newspaper was prepared to defend under the law of libel.
5. Section 12(3). Even assuming a privacy right existed, the court was not satisfied on the balance of probabilities that the applicant was likely to obtain a permanent injunction at trial. Interim relief was therefore refused. The court observed that a temporary injunction might sometimes be appropriate to enable an appeal to be tested, but subject to that consideration there was no reason to withhold the judgment from publication.