CDE & Anor v MGN Ltd & Anor

On an application to continue an interim privacy injunction, the court must assess the likely outcome at trial on the evidence available and weigh the competing rights under Articles 8 and 10. The exercise is fact-sensitive and proportionality-based; there are no hard and fast rules. The rights of affected family members must be included where they are foreseeably engaged. A defendant’s interpretation of events does not itself establish a public interest sufficient to justify publication. Alleged wrongdoing or technical statutory breaches must be assessed by the court and do not automatically override privacy or confidentiality. Anonymity may be ordered where identification would defeat the protective purpose of the injunction, provided the restriction is necessary and proportionate to preserve both the parties’ rights and the transparency of the court’s reasoning.

The claimants sought continuation of an interim injunction restraining publication by MGN Ltd and the second defendant of intimate communications and other private information concerning the first claimant’s relationship with the second defendant. The claim relied on confidence and privacy rights under Article 8. The defendants relied on Article 10 and argued that publication was justified by alleged exploitation of a vulnerable woman, an alleged BBC-related public interest, an alleged breach of Communications Act 2003, and an alleged trick by which a telephone number had been obtained.

The court considered whether the claimants were likely to obtain permanent relief at trial, whether the proposed publication contributed to a debate of general interest, and whether the parties and relevant non-parties should remain anonymous pending trial.

1. Interim injunction. The injunction was continued. Under section 12(3) of the Human Rights Act 1998, the court had to assess whether the claimants were likely to obtain a permanent injunction at trial, using the incomplete and untested evidence available on the application.
2. Convention balance. The threatened publication plainly engaged the Article 8 rights of the claimants and their families. Those rights had to be weighed against the defendants’ Article 10 rights. The exercise was a fact-sensitive assessment of proportionality, without hard and fast rules.
3. Public interest. The alleged BBC involvement was unlikely to be established. Even if the exchange of intimate images technically contravened section 127 of the Communications Act 2003, that would not itself create a public interest sufficient to justify publication. The court had to determine for itself whether the evidence showed exploitation or another public interest capable of overriding Article 8; a defendant’s retrospective interpretation was not a trump card.
4. The material appeared likely to be embarrassing private information rather than material contributing to a debate of general interest. The claimants were therefore likely to succeed at trial in obtaining permanent protection against publication.
5. Anonymity and open justice. Open justice required transparent reasoning, but anonymity was necessary and proportionate where identification would disclose the protected information and make a trial pointless. The identities of the claimants were withheld, and temporary anonymity was also granted to specified non-parties because the observations made on the application were based on incomplete evidence and were not trial findings.