Contostavlos v Mendahun

In an application for interim privacy relief, intimate sexual images attract a very strong expectation of privacy. The court must first ask whether a reasonable person of ordinary sensibilities would feel distress in the claimant’s position. Photographs and video may intrude more deeply than words because each viewing can create a fresh invasion of privacy. The public-domain defence has little realistic prospect where the material consists of intimate sexual images. Under section 12 of the Human Rights Act 1998, an interim injunction may be granted where the claimant is likely to establish at trial that publication should not be allowed.

The claimant sought continuation of a non-disclosure order restraining publication or disclosure of videos and still images depicting her engaged in sexual activity. The order had initially been made urgently before service of the claim form and was later extended to cover any such film or video. The third defendant, alleged to be the other person depicted, appeared and supported continuation of the order. The first and second defendants did not appear.

The application concerned the continuation of interim relief pending trial, before factual disputes about the filming and disclosure had been resolved. The central issues were whether the material engaged a reasonable expectation of privacy and whether the statutory threshold for interim restraint was met.

1. Order continued. The non-disclosure order restraining publication or disclosure of any film or video of the claimant engaged in a sexual act, or any part or still image from it, was continued until trial or further order.
2. The application was governed by section 12 of the Human Rights Act 1998. The court had to be satisfied that the claimant was likely to establish at trial that publication should not be allowed.
3. The first question in a privacy claim is whether the claimant had a reasonable expectation of privacy. The relevant inquiry, stated in Campbell v MGN [2004] 2 AC 457 at para 49, asks how a reasonable person of ordinary sensibilities would feel if placed in the claimant’s position and faced with the same publicity.
4. Details of sexual life have long been recognised as matters capable of protection by non-disclosure orders. Photographs are more intrusive than verbal or written descriptions. In the case of intimate photographs or video, there was no real prospect of a public-domain defence. The court relied on the reasoning in Douglas v Hello! [2005] EWCA Civ 595; [2006] QB 125, including the principle that each further viewing of an intrusive image may constitute a fresh invasion of privacy.
5. The third defendant supported the order, and no served defendant advanced a legal basis for resisting it. The order also contained procedural protections necessary to prevent the proceedings’ purpose being defeated, including restrictions on access to documents and protection of the hearing papers. The factual disputes were left for trial.

First-instance interim application. The judgment states that the proceedings would proceed to trial in accordance with the Civil Procedure Rules 1998.