WXY v Gewanter & Ors

Information does not cease to be protectable merely because it has received some publicity. The relevant question is whether it has become so generally accessible, and so connected with the claimant, that an injunction would serve no useful purpose. The court must consider the extent and nature of publication, the size and character of the audience, whether the claimant has been identified, and whether further publication would reach a wider audience or revive fading interest. Privacy rights under Article 8 must be balanced against freedom of expression under Article 10. The public-domain status of information is not a defence to a harassment injunction where publication forms part of conduct amounting to harassment.

The claimant had obtained judgment against the third defendant for breach of confidence, misuse of private information and harassment, together with injunctive relief. The court had previously found that the confidential material had not entered the public domain. At the hearing concerning the final order, the third defendant argued that later parliamentary, newspaper and internet publications made further restraint futile. The parties also disputed the territorial scope of disclosure obligations, disclosure of litigation funders’ addresses, and the operation of a liberty to apply provision. The central issues were whether the protected information and the claimant’s identity had become sufficiently accessible, how Articles 8 and 10 should be balanced, and what final orders were proportionate.

1. Public domain. The material relied on consisted principally of anonymised parliamentary evidence, newspaper reports and limited website postings. The claimant was not authoritatively identified in the mainstream publications. The website material was specialist, attracted no proved substantial audience, and involved speculation or unverified assertions. The court could not safely infer that a sufficient number of people had connected the claimant with the protected allegations.
2. The relevant test was whether the information was so generally accessible that there was nothing left for the law to protect. Even where information has been published in one forum, further publication may be restrained if it would reach a different or wider audience, or revive information likely to have faded from memory. The injunction would therefore have practical utility.
3. The court maintained the Article 8 and Article 10 balance reached at the earlier hearing. No new evidence or argument justified a different conclusion. The claimant’s privacy rights outweighed the third defendant’s rights to publicise the information in the circumstances of the case.
4. As the claimant’s harassment claim had succeeded, the fact that material might be publicly available would not itself defeat an injunction restraining harassment by publication. That conclusion was not necessary to the result because the material had not entered the public domain to the relevant extent.
5. The final injunction was granted in the terms sought, with an agreed addition to the Confidential Schedule. The obligation to identify recipients of documents containing the protected information was limited to publication in England and Wales. The obligation concerning documents filed, served or created for the proceedings was not territorially limited, since that distinction furthered the integrity of the proceedings.
6. The third defendant was required to provide the names and addresses of litigation funders because both were needed for any application to join a funder under CPR 48.2. The liberty to apply provision was confined to applications founded on findings of fact made at the trial against the first and second defendants, with a 28-day period for any application following judgment or determination of an appeal.

Not stated in the judgment.