CTB v News Group Newspapers Ltd & Anor

Interim privacy injunctions require a fact-sensitive balancing of competing rights under Articles 8 and 10. Neither right has automatic priority. The court must first decide whether the claimant has a reasonable expectation of privacy in the threatened publication. It must then undertake an intense and proportionality-focused comparison of the competing rights, including any asserted public interest in publication.

Information already genuinely in the public domain cannot ordinarily be protected, but limited publication may leave a residual expectation of privacy. On an interim application under section 12(3) of the Human Rights Act 1998, “likely” generally means more likely than not. A person may sell a life story, but remains subject to duties of confidence and may not thereby intrude upon another person’s privacy rights.

The claimant, referred to as CTB, sought to restrain News Group Newspapers Ltd and Imogen Thomas from publishing his identity and details of an alleged sexual relationship. Interim relief was granted on 14 April 2011 and continued after the return hearing on 20 April. The claimant relied on privacy, confidence and the threatened publication of intimate personal information.

The evidence was incomplete and untested. The principal questions were whether the claimant retained a reasonable expectation of privacy, whether relevant material was already in the public domain, whether publication served a legitimate public interest, and whether the claimant was likely to obtain a permanent injunction at trial.

1. Convention rights. The court was required to balance the claimant’s Article 8 rights, including the interests of his family, against the defendants’ Article 10 rights and the public interest in receiving information. Neither Convention right had automatic precedence. The court had to focus intensely on the particular rights claimed, consider the justification for interfering with each right, and apply proportionality to each. These were the propositions identified in Re S (A Child) [2005] 1 AC 593 at [17].
2. Two-stage methodology. First, the court had to decide whether the threatened publication concerned subject matter giving rise to a reasonable expectation of privacy. Intimate and sexual conduct ordinarily satisfied that threshold where the relationship was not conducted publicly. Secondly, the court had to weigh the Article 8 and confidence rights against Article 10 and any legitimate public interest. Publication of tawdry private allegations would rarely outweigh privacy rights, particularly where no legitimate public interest or contribution to a debate of general interest was shown.
3. Public domain. Confidentiality and privacy could not ordinarily protect information that was genuinely so generally accessible that it was no longer confidential. However, limited publication did not necessarily extinguish privacy in personal information. Whether a residual expectation remained was a question of degree, assessed on the facts.
4. Interim relief. Under section 12(3) of the Human Rights Act 1998, the court had to assess the evidence as it stood and decide whether the claimant was likely to obtain a permanent injunction at trial. “Likely” meant more likely than not. The claimant’s evidence remained uncontradicted, the information retained the quality of private information, and no countervailing public-interest argument had been advanced.
5. Disposition. The injunction was continued by an agreed order taking effect from the return date. Any order had to be tailored to exclude information genuinely in the public domain, including the material already published in The Sun. Although Ms Thomas could sell her life story, that right remained subject to any duty of confidence and to the privacy rights of others.

First-instance decision. The judgment records that interim relief was granted on 14 April 2011, continued on 20 April, and embodied in an agreed order approved on 21 April 2011.