SOJ v JAO

For an interim privacy or confidentiality injunction, the court must balance article 8 rights against article 10 rights and apply section 12 of the Human Rights Act 1998. The applicant must ordinarily show sufficiently favourable prospects of establishing at trial that publication should not be allowed, although short-term relief may be justified where disclosure would cause grave and irreversible harm. A freely negotiated confidentiality obligation, particularly one settling litigation and supported by independent legal advice, carries substantial weight. The absence of public interest in private sexual information, credible evidence of blackmail or threatened breach, and the inadequacy of damages may together justify worldwide restraint. Such relief does not prevent the respondent from issuing proceedings, provided the order is not breached.

The claimant, a wealthy businessman, sought without-notice interim relief against the defendant, with whom he had had an intimate relationship. He relied on a settlement agreement containing extensive confidentiality obligations, alleging that the defendant had disclosed information about the relationship and threatened further disclosure through proposed proceedings in the United States.

The application concerned anonymity, a private hearing, service without notice, enforcement of the confidentiality bargain, an asserted GDPR claim, alleged blackmail, adequacy of damages and the territorial reach of the injunction. The defendant did not appear. The central issue was whether interim relief should be granted pending a full inter partes hearing.

1. Interim relief. The court applied American Cyanamid v Ethicon [1975] A.C. 396 and the required intense focus on competing article 8 and article 10 rights. Under section 12(3) of the Human Rights Act 1998, publication should not ordinarily be restrained unless the applicant is likely to establish at trial that publication should not be allowed. Following Cream Holdings Ltd v Banerjee [2004] UKHL 44, the required likelihood depends on the circumstances. Short-term relief may be granted on a lesser showing where disclosure would have particularly grave consequences or is needed for proper consideration of the application.
2. Privacy and contractual confidence. There was no general public interest in disclosure of private sexual encounters. An express confidentiality obligation carries enhanced weight, especially where it forms part of a freely negotiated settlement of litigation, made with independent legal advice and without a vitiating factor.
3. Blackmail and threatened breach. Blackmail may justify restraint even if the underlying information is true. The evidence provided a credible basis for contending that the claimant had been subjected to blackmail and that the defendant threatened to breach the settlement.
4. GDPR and damages. The court declined to rely on the claimant’s US attorney’s evidence of foreign law. It considered that any GDPR claim appeared properly brought in England and Wales and was arguably barred by explicit consent to processing. It was unnecessary finally to decide that issue. Damages would not adequately compensate the claimant, while the defendant’s interests were protected by the cross-undertaking and contractual arbitration.
5. Scope. Because the defendant was amenable to the jurisdiction, the court could restrain publication worldwide. The order was not an anti-suit injunction. Relief was granted pending a full inter partes hearing.