CTB v News Group Newspapers Ltd & Anor

Widespread online disclosure does not automatically make a privacy injunction futile. The court must continue to apply the law as it stands unless Parliament changes it. Personal privacy differs from commercial or state secrecy: public availability is relevant, but there is no simple bright-line rule by which personal information loses protection. The court should ask whether there is a solid reason for national-media publication which outweighs the claimant’s and family’s legitimate interests in anonymity. Repeated publication may create fresh intrusion and distress. An injunction may therefore remain useful where some further publication can still be prevented and there is no legitimate public interest in disclosure.

The claimant had obtained an injunction restraining publication of private and confidential material and preserving his anonymity. Following widespread internet speculation and publication, the first defendant applied to vary the injunction so that the claimant could be identified. It also argued that it should be permitted to pass information to the claimant’s wife.

The claimant sought specific disclosure under Civil Procedure Rules 1998 rule 31.12, alleging that disclosure might illuminate whether the first defendant or its associates had helped disseminate identifying material online. The central issues were whether early disclosure was necessary and proportionate, and whether internet dissemination had removed any useful purpose served by the injunction.

1. Specific disclosure. The claimant’s application was dismissed. The court could determine the variation application without investigating the defendant’s internal email traffic. The proposed search was unnecessary and disproportionate. The possibility that disclosure might expose contempt or self-incrimination was a factor to be taken carefully into account, but was not an absolute bar: Cobra Golf Inc v Rata [1996] FSR 819; Dendron GmbH v University of California [2005] 1 WLR 200; and C Plc v P (Att.-Gen. intervening) [2008] Ch 1.
2. Effect of internet dissemination. The court rejected the argument that privacy injunctions cease to serve a useful purpose whenever information can be found online. Courts must apply the existing law. If the law is thought unenforceable or unpopular, legislative change is required. The reasoning in Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) was distinguished because, in that case, the material was already extensively available before the injunction application. Here, further publication remained possible.
3. Public domain and personal privacy. The limiting principle identified in Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 applies differently to personal information. Under the modern privacy law described in Campbell v MGN Ltd [2004] 2 AC 457, protection depends on whether there remains a reasonable expectation of privacy. The law addresses intrusion as well as information. Repeated exposure can create a fresh intrusion, and the truth or falsity of allegations may be irrelevant: McKennitt v Ash [2008] QB 73.
4. Balancing exercise. Following JIH v News Group Newspapers Ltd [2011] 2 All ER 324 and Re Guardian News and Media Ltd [2010] UKSC 1, the relevant question was whether there was a solid reason to reveal the claimant’s identity in the national media which outweighed the legitimate interests of the claimant and his family in anonymity. No legitimate public interest in publication had been suggested, and the answer remained negative.
5. The application to vary the injunction was rejected. The proposed communication to the claimant’s wife was not a proper exercise of the defendant’s Article 10 rights, and Article 8 did not make the defendant a relationship counsellor.