TSE & Anor v News Group Newspapers Ltd

An interim privacy injunction may be granted where the claimant has a reasonable expectation of privacy and publication is unlikely to be permitted after an intense, fact-specific balancing of Articles 8 and 10. The court must consider the matters required by section 12 of the Human Rights Act 1998, including the public interest in publication, even where the respondent advances no public-interest case. Prior publication does not necessarily make an injunction futile. Repetition may continue to interfere with private and family life and may cause harassment. Where anonymity is necessary to make the injunction effective, the claimants may be anonymised.

Two claimants sought to restrain publication identifying them as having had a sexual relationship, or identifying them as the applicants for the injunction. The application followed an interim order made by Sharp J on 13 May 2011. The defendant neither resisted nor consented to the injunction and advanced no public-interest argument. Some information had already appeared in print and electronic media. The central issues were whether the information engaged Article 8, whether the claimants were likely to establish that publication should not be allowed under section 12(3) of the Human Rights Act 1998, and whether an injunction remained effective despite prior publication.

1. Relief granted. Mr Justice Tugendhat continued the injunction restraining publication of information tending to identify the claimants as having had a sexual relationship or affair, and information identifying them as the applicants. Anonymity remained necessary because naming them would disclose the nature of the information and undermine the injunction.
2. The starting question under Article 8 was whether each claimant had a reasonable expectation of privacy. That was an objective question. The assessment required consideration of all the circumstances, including the claimant’s attributes, the activity, the place, the nature and purpose of the intrusion, consent, its effect, and how the information came to the publisher.
3. Where Articles 8 and 10 were engaged, neither had automatic precedence. The court had to focus intensely on the comparative importance of the specific rights and interests, consider the justification for interfering with each right, and apply proportionality to each. The issue had to be decided by reference to the particular facts rather than rival generalities.
4. Section 12(3) required the court to be satisfied that the claimants were likely to establish that publication should not be allowed. Section 12(4) required particular regard to the importance of freedom of expression, the extent to which the material was public or its publication was in the public interest, and any relevant privacy code. Those matters had to be considered even though the defendant did not rely on them.
5. Sexual relationships were ordinarily matters in respect of which there was a reasonable expectation of privacy. The defendant produced no evidence that publication would expose misleading conduct or otherwise serve a public interest. The effect of publication on the claimants’ children was also relevant.
6. Prior publication did not automatically defeat relief. Although secrecy had been lost to some extent, repetition could still constitute unjustified interference with private and family life and create a pressing risk of harassment. An injunction was therefore not futile.