AMC & Anor v News Group Newspapers Ltd

When deciding an application to restrain publication, the court must balance the competing rights under articles 8 and 10 of the ECHR. Neither right has automatic precedence. Material concerning a person’s sexual life is, in principle, protected by article 8, including where the relationship was transient. A prominent public position does not make the whole of a person’s private life public property. The court must assess whether publication contributes to a debate of general interest; prurient public curiosity is insufficient. Past private infidelity, deception or rule-breaking will not necessarily establish a public interest in publication, particularly where the conduct has no wider social ramifications. Under section 12 of the Human Rights Act 1998, the likelihood threshold is fact-sensitive and may be lower where only short-lived interim relief is sought.

The claimants, anonymised as AMC and KLJ, sought urgent interim relief preventing News Group Newspapers Limited from publishing an account by X of a past sexual relationship involving the first claimant. The relationship had ended several years earlier, before the first claimant’s marriage to the second claimant. The defendant relied on freedom of expression and asserted a public interest based on the first claimant’s public role as a sportsman, alleged hypocrisy, past deception and alleged breaches of team rules.

Following an urgent private telephone hearing, the court granted short-term relief until 5 August 2015 and then gave this judgment on the more fully argued application. The central issues were whether the first claimant had a reasonable expectation of privacy, whether publication would unjustifiably interfere with the claimants’ article 8 rights, and whether temporary restraint was justified under section 12 of the Human Rights Act 1998.

1. Interim injunction granted. The proposed publication was restrained for a short period. The interference with the claimants’ article 8 rights was not a proportionate means of achieving a legitimate aim, while temporary restraint was a proportionate means of protecting those rights.
2. Under articles 8 and 10 of the ECHR, neither right has precedence. Each is defeasible, and the court must intensely focus on the facts and balance the relative importance of the competing rights. Neither side bears a conventional burden of proof; each must justify interference with the other’s right.
3. Section 12 of the Human Rights Act 1998 applied. The requirement that the applicant was likely to establish that publication would not be allowed involved a variable standard. A lower degree of likelihood could suffice where the injunction was short-lived and was sought pending fuller argument.
4. The first claimant had a reasonable expectation of privacy in the relationship. Sexual-life information was in principle protected by article 8 whether the relationship was transient or durable. The clandestine nature, duration and personal significance of the relationship supported that conclusion. The first claimant’s prominence as a sportsman did not make his entire sexual history public property. His role as a sports role model did not extend to every sphere of his private life.
5. The asserted public interest did not justify publication. Commercial motivation did not reduce the importance of press freedom, but public curiosity was distinct from a debate of general interest. The alleged historic rule-breaking, deception, infidelity and creation of a false public image did not establish a current public interest. The court expressed doubt that the private conduct was socially harmful, observing that it caused private pain but had no wider social ramifications. Courts should be cautious about treating social harm as a pretext for imposing contested moral judgments.
6. The existing public-domain material did not remove the justification for relief because there was a significant gap between that material and the proposed publication. The anonymity and open-justice derogations were necessary and proportionate because otherwise the purpose of the application would be defeated.
7. McClaren v News Group Newspapers Limited [2012] EWHC 2466 (QB) was distinguishable because the claimant there was married at the material time and had previously sold a similar story to a newspaper.