ZYT & Anor v Associated Newspapers Ltd

On an interim application for publication restraints, section 12(3) of the Human Rights Act 1998 requires the claimant to show that success at trial is more likely than not. A relationship may be private and confidential even though some people know of it; the question depends on the circumstances. Misuse of private information requires a reasonable expectation of privacy followed by close scrutiny of the competing Article 8 and Article 10 rights. Those rights have equal value, and the result turns on necessity and proportionality. A claimed public interest in discussing general ethical issues does not necessarily justify publication of identifying facts, particularly where allegations of misconduct or abuse of position remain speculative.

The claimants sought urgent interim injunctions against Associated Newspapers Limited, publisher of the Daily Mail, to restrain publication of information about their personal relationship, including its existence, details and photographs of them together. They relied on breach of confidence and misuse of private information. The defendant argued that any privacy or confidentiality was limited and that publication was justified by a public interest in alleged misconduct, abuse of position, or debate about relationships within an educational institution. The application was heard in private because public proceedings could have defeated its purpose. The central issue was whether the claimants were likely to establish at trial that publication should not be permitted.

1. Interim threshold. Under section 12(3) of the Human Rights Act 1998, “likely” meant more likely than not. The court had to assess the probable outcome at trial on the evidence available, while recognising that interim evidence might be incomplete and avoiding speculation.
2. Breach of confidence. The claimants had to establish that the information was confidential, that the defendant owed a duty of confidence, and that threatened use or disclosure would breach that duty. On the evidence, the fact of the relationship was likely to be found both confidential and private. Its limited circulation did not destroy that character. The defendant was also likely to owe a duty of confidence.
3. Misuse of private information. The claimants were likely to establish a reasonable expectation of privacy in the information. The court then had to balance the competing Article 8 and Article 10 rights, treating them as inherently equal in value and applying the yardsticks of necessity and proportionality.
4. Public interest. There was a genuine public interest in debate about personal relationships in an educational context, and such debate could properly be informed by concrete examples. However, the evidence did not provide good or reasonable grounds to believe or suspect abuse of position or breach of trust. The allegations were speculative, and it was unlikely that publication of these claimants’ relationship would be justified for the proposed debate.
5. The interim injunctions were granted, including anonymisation. Restraining publication while disclosing the claimants’ identities would have enabled the information to be reconstructed from other material in the public domain. The injunctions were granted until the return hearing on 6 May 2015.