MJN v News Group Newspapers Ltd

Interim restraint of publication of private information requires a real prospect that the claimant will establish at trial that publication should not be allowed. The court must first determine whether the information attracts a reasonable expectation of privacy. If it does, the court must balance the claimant’s Article 8 rights against the Article 10 rights of the publisher and any person supplying the information. Public interest means more than material that interests the public. In the absence of a genuine public-interest justification, sexual information concerning a private relationship will ordinarily attract strong protection. The court must also ensure that anonymity and restrictions on confidential material are necessary and proportionate derogations from open justice.

The claimant, an anonymised married Premier League footballer, sought continuation of an interim injunction restraining News Group Newspapers Ltd from publishing information identifying him as the person involved in a private relationship with an 18-year-old lingerie model, or revealing sexual and salacious details. The injunction had been granted by Beatson J on 5 May 2011. The defendant did not oppose continuation, subject to agreed variations, but did not consent to it. The court therefore had to assess independently whether the statutory threshold for interim restraint was met, whether the information was private, whether publication was justified in the public interest, and what measures were necessary to protect anonymity and confidential evidence.

The application was granted. The injunction made by Beatson J was continued until trial or further order, subject to an agreed variation concerning photographs and video footage.

1. Interim threshold. Section 12 of the Human Rights Act 1998 applied because the order affected freedom of expression. The claimant had to show that he was likely to establish at trial that publication should not be allowed. The defendant’s decision not to resist relief was a material factor, but the court remained under an independent duty to assess the merits.
2. Privacy. The court applied the two-stage inquiry stated in DFT v TFD [2010] EWHC 2335 (QB). First, the question was whether a reasonable person, considering all the circumstances, would regard the information as private. Relevant matters included the claimant’s attributes, the nature and location of the activity, the purpose of the intrusion, absence of consent and the effect of disclosure. The claimant was likely to establish a reasonable expectation of privacy in respect of the undisclosed sexual relationship.
3. Balancing rights. The claimant’s Article 8 rights had to be balanced against the Article 10 rights of the defendant and the model. Neither Convention right had automatic precedence. The court required an intense focus on the specific rights engaged and applied proportionality to each, following Re S (a child) [2005] 1 AC 593. There was no advanced public-interest justification. Publication of the claimant’s identity and sexual details would not contribute to a debate of public interest.
4. Open justice and confidentiality. Anonymity remained necessary. The hearing could take place in public, provided that CPR 31.22 prevented non-parties from using or obtaining the confidential schedules and skeleton arguments. Further confidentiality provisions were necessary to prevent disclosure of the information in issue.

This was a first-instance interim application. Beatson J had granted an interim injunction on 5 May 2011. On the return date, the High Court continued the injunction until trial or further order, with an agreed variation.