Spelman v Express Newspapers

In an application for a pre-publication privacy injunction, the claimant must show that publication is more likely than not to be prohibited at trial. The court must then balance the competing Article 8 and Article 10 rights by focusing intensely on the specific information and circumstances. A child has no general entitlement to privacy based solely on age. Participation, or intended participation, in high-level public sport may substantially reduce any reasonable expectation of privacy, particularly where health affects the ability to participate. The public interest may include debate about the welfare of young athletes and the institutions responsible for them. The inability to identify the proposed publication, and the availability of damages after publication, may make prior restraint disproportionate. The injunction was therefore not continued.

Jonathan Spelman, a 17-year-old English rugby player, sought continuation of an interim injunction restraining Express Newspapers from publishing information concerning his health and sporting circumstances. The injunction had been granted by Lindblom J on 11 February 2012 and published in redacted form as [2012] EWHC 239 (QB). By the hearing before Tugendhat J, the evidence was fuller, but the newspaper still had not identified the proposed article or publication. The issues included whether the claimant had a reasonable expectation of privacy, whether publication would be in the public interest, the effect of his age and sporting status, and whether an injunction was necessary and proportionate.

1. The application was dismissed. It was not necessary or proportionate to continue the interim injunction. The decision did not authorise publication of private information. Any later publication could give rise to a claim for damages, including aggravated damages.
2. Under s 12(3) of the Human Rights Act 1998, the claimant had to show that publication was more likely than not to be prohibited at trial before the court could grant or continue prior restraint. The court applied the approach in Cream Holdings Ltd v Banerjee, focusing on the prospects of success at trial.
3. The court applied the two-stage privacy inquiry identified in Murray v Express Newspapers plc. First, it asked whether the claimant had a reasonable expectation of privacy, considering the claimant’s attributes, the activity, the place, the nature and purpose of the intrusion, consent, its effects, and the circumstances in which the information came to the publisher. Only if that threshold was met was the balancing exercise required.
4. The claimant’s age supported his case only to a limited extent. Children have no general right to privacy merely because they are children. His status as an international-level sportsman meant that discussion of his sporting life and health, where relevant to participation in public sport, could contribute to a debate of general interest. The court treated that as reducing the expectation of privacy.
5. The court applied the balancing approach in Re S (A Child) (Identifications: Restrictions on Publication). Neither Convention right had precedence. The court had to focus on the comparative importance of the specific rights, the justification for restricting each right, and proportionality. The contribution of publication to a debate of general interest was material, as explained in Von Hannover v Germany, Ntuli v Donald and the Strasbourg authorities concerning sporting issues.
6. The information was divided into separate classes. The court could not assess the proposed intrusion because no article or proposed wording existed. The claimant had not established the requisite likelihood concerning the First Source’s Information, and no privacy argument had been advanced concerning the Second Source’s Information. The newspaper had a good prospect of showing that publication of some information of the relevant kind would be in the public interest, although much would depend on the article’s style and intrusiveness.
7. Damages were not invariably inadequate. Although damages cannot restore secrecy once information has been disclosed, they may provide an effective remedy where the principal interest is distress or injury to feelings. The court noted that privacy law contains remedies other than prior restraint.