Spelman v Express Newspapers

For an interim non-disclosure injunction engaging privacy and freedom of expression, neither Article 8 nor Article 10 has automatic precedence. The court must focus intensely on the comparative importance of the competing rights, consider the justification for restricting each, and apply proportionality.

Under section 12 of the Human Rights Act 1998, the claimant must satisfy the more likely than not threshold before relief restraining publication is granted. A minor’s sensitive personal information and likely serious harm may outweigh publication where the claimed public interest would not materially be advanced.

Anonymity is a separate question. Open justice remains the general rule, and privacy cases create no general exception. Any restriction must be the least necessary to protect Article 8 rights.

The claimant, a 17-year-old child represented by his parents as litigation friends, applied urgently for an interim non-disclosure order against Express Newspapers. The defendant intended to publish a newspaper story concerning sensitive personal information, including matters connected with the claimant’s status as the son of a Cabinet minister.

The application relied on Article 8 of the European Convention on Human Rights and duties of confidence. The claimant also sought anonymity. The central issues were whether publication should be restrained under section 12 of the Human Rights Act 1998, and whether the proceedings and parties should be anonymised.

1. Interim injunction granted. The court found that the information attracted a reasonable expectation of privacy and engaged Article 8. The claimant was a minor and the information was sensitive. The fact that his mother was a Cabinet minister gave the story a political dimension, but it was not decisive.
2. The court rejected the submission that the claim was a defamation action in disguise and that the injunction was barred by Bonnard v Perryman. The information had apparently reached the defendant through a leak, and the circumstances in which information came into the publisher’s hands were relevant to the privacy assessment, as explained in Murray v Express Newspapers plc [2009] Ch 481.
3. Articles 8 and 10 required a balancing exercise. Neither right had automatic precedence. The court applied an intense focus on the comparative importance of the specific rights, considered the justification for restricting each right, and applied proportionality, following the approach stated in Re S (a child) [2005] 1 AC 593.
4. Applying the more likely than not test under Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the claimant crossed the necessary threshold. Publication at that stage would not materially advance the claimed public interest, while it was likely to have a very significant harmful effect. The balance therefore favoured the claimant.
5. Anonymity refused. Open justice was fundamental. The court applied the principles in JIH v News Group Newspapers [2011] EWCA Civ 42: there was no general exception for privacy cases, public figures received no special treatment, and restrictions had to be the least necessary. Naming the parties while protecting the subject matter and precise relief provided sufficient protection.
6. Permission to appeal on anonymity was refused, and anonymity was not continued pending renewal. The order included a return date and undertakings concerning compensation, service of proceedings and notification of affected third parties.