ETK v News Group Newspapers Ltd.

An interim injunction restraining publication of private information may be granted where the claimant is more likely than not to obtain final relief at trial. The court must first determine whether there is a reasonable expectation of privacy, considering all the circumstances. Limited knowledge among friends or work colleagues does not necessarily place information in the public domain.

If article 8 is engaged, the court must balance it against article 10. The decisive consideration is the publication’s contribution to a debate of general interest. Particular weight must be accorded to the article 8 rights and best interests of children likely to be harmed, although their interests are not a trump card. Public curiosity or prurience does not itself justify interference with private and family life.

A married entertainer sought an interim injunction restraining a newspaper from publishing information about his former sexual relationship with a married female colleague, X, and the alleged connection between that relationship and the termination of X’s employment. The relationship had become known to some work colleagues. The applicant’s wife and X opposed publication, and the applicant contended that publicity would harm his marriage and teenage children.

Collins J found a reasonable expectation of privacy but refused relief after balancing the parties’ rights under articles 8 and 10 of the European Convention on Human Rights. He considered that the effect of the affair on X’s employment created a public interest and that the likely harm to the children could not tip the balance.

The Court of Appeal granted permission and considered whether the judge had properly weighed the privacy rights of everyone affected, the children’s best interests and the publication’s contribution to a debate of general interest.

1. Appeal allowed unanimously; respondent’s cross-appeal dismissed. The applicant was more likely than not to obtain an injunction at trial. Interlocutory injunctions were therefore granted in the terms sought.

2. The applicant had a reasonable expectation of privacy. The sexual relationship was essentially private. Its becoming known through observation, gossip or confidential disclosure among work colleagues did not place the information in the public domain. A reasonable person of ordinary sensibilities in the applicant’s position would find the proposed disclosure offensive.

3. The balancing exercise had to include the article 8 rights of X, the applicant’s wife and his children, rather than focusing only upon the applicant. X opposed the intrusion and did not intend to bring proceedings concerning the termination of her employment. The wife opposed publication, while immediate publicity would threaten the family’s reconciliation and expose the children to foreseeable ridicule and embarrassment.

4. When publication is likely to harm children, their article 8 rights and best interests must receive particular weight. The primacy accorded to those interests does not make them automatically decisive or permit them to override the Convention rights of others. A tangible and objective public interest favouring publication may outweigh them, but its force is highly material.

5. The court applied the ultimate balance between articles 8 and 10 of the European Convention on Human Rights. Neither right had automatic precedence. The court had to focus intensely upon the specific rights, examine the justification for each interference and apply proportionality. Although press freedom is constitutionally vital, article 10 carries duties and responsibilities and may be restricted to protect others’ rights and confidential information.

6. The decisive factor was whether publication would contribute to a debate of general interest. The proposed report had no political or wider democratic significance. The reasons for X’s departure might interest some readers but were not matters of public interest. Public prurience did not justify the resulting interference with the privacy of all affected, especially the children.

1. Court of Appeal (Civil Division): The court granted permission, allowed the appeal unanimously, dismissed the respondent’s challenge to the finding of a reasonable expectation of privacy and granted interlocutory injunctions: [2011] EWCA Civ 439.
2. Queen’s Bench Division: Collins J found a reasonable expectation of privacy but dismissed the application for an interim injunction. He refused permission to appeal while granting temporary relief to permit an expedited application to the Court of Appeal.