AMM v News Group Newspapers

An interim privacy injunction may be granted where the applicant is likely to establish that publication should not be allowed and damages would not provide an adequate remedy. The court must balance the applicant’s Article 8 rights against freedom of expression under Article 10, having regard to the statutory matters governing journalistic material, including public availability, public interest and any relevant privacy code. A hearing may be conducted in private and the applicant anonymised where identification would cause serious additional harm or risk revealing the protected information. An undertaking not to publish may not remove the need for an injunction where anonymity remains unresolved or the order provides necessary precision.

An individual sought an injunction against the publisher of the Sun on Sunday to restrain publication of information concerning a sexual relationship. The defendant had been notified but was not represented at the hearing. It offered by email not to publish the material for seven days, without agreeing to anonymity. The court granted an injunction for a short period pending further evidence and directions, and considered whether the statutory threshold for pre-trial relief, the competing Convention rights, privacy safeguards and the proposed undertaking justified the orders.

1. The application for an interim privacy injunction was granted. The court was satisfied under section 12(2) of the Human Rights Act 1998 that all practicable steps had been taken to notify the defendant.
2. Under section 12(3), the relevant question was whether the applicant was likely to establish that publication should not be allowed. On the information available, that threshold was met. The material concerned private sexual information, engaged the applicant’s and the applicant’s family’s Article 8 rights, and was not known to be publicly available.
3. The court balanced Articles 8 and 10 of the Convention. Applying the principles in Von Hannover (No 2) [2010] EMLR 16, the balance favoured the applicant. The defendant had provided no cogent substantive justification showing that publication was in the public interest.
4. The court had particular regard to section 12(4) of the Human Rights Act 1998, including the extent of public availability, the public interest in publication and the relevant privacy code. The IPSO Editors Code of Practice, especially its privacy and public-interest provisions, was considered.
5. Damages would not be an adequate remedy if the information were published and publication were later found wrongful.
6. The hearing was properly conducted in private and the applicant anonymised. Although open justice was the general rule under Article 6 and CPR 30.2(1), anonymity was necessary at that stage because speculation about the private information could cause serious harm and might itself lead to disclosure.
7. The defendant’s proposed seven-day undertaking did not make an injunction unnecessary. It did not address anonymity, followed an apparent failure to provide the previously indicated 48 hours’ notice, and lacked the precision and clarity supplied by a court order.