Wan-Bissaka & Anor v Bentley

For an interim injunction affecting freedom of expression, Human Rights Act 1998, section 12(3), requires a probability of success: the claimant must be more likely than not to establish at trial that publication should be prohibited.

Private sexual communications ordinarily attract a reasonable expectation of privacy. Public interest does not normally justify disclosure merely because the relationship involved serious allegations or adultery. The court must balance the competing Convention rights on the evidence available.

Harassment requires objectively oppressive and unacceptable conduct of sufficient gravity to sustain criminal liability. A persistent and deliberate course of unreasonable conduct causing alarm, fear or distress must be shown.

The claimants, a professional footballer and his partner, sought an interim injunction against the defendant, the footballer’s former partner. They relied on misuse of private information, breach of confidence and harassment.

The application followed Instagram posts referring to the claimants’ pregnancy and publishing private messages exchanged during the former relationship. The defendant had previously given a limited undertaking but did not attend the substantive hearing or provide evidence in response.

The court considered whether the statutory threshold for relief affecting freedom of expression was met, whether further publication of private relationship communications should be restrained, and whether the evidence established a sufficient prospect of success in harassment.

1. Application granted in part. The court granted an interim injunction for three weeks in relation to the First Claimant’s misuse of private information claim. No injunction was granted for the Second Claimant’s harassment claim.
2. Under section 12(3) of the Human Rights Act 1998, an injunction restraining publication before trial may be granted only where the claimant is likely to establish that publication should not be allowed. “Likely” means more likely than not, or a probability of success. The assessment is necessarily provisional and based on the evidence available at the interim hearing.
3. The First Claimant was likely to establish a reasonable expectation of privacy in private messages and information concerning a former sexual relationship. There was a credible threat of further publication. Purely private sexual encounters and communications ordinarily lack a public-interest justification for disclosure, even where serious matters such as adultery are alleged.
4. The court had to balance the Article 8 rights of the First Claimant against any competing interest relied upon by the defendant. On the evidence then available, the First Claimant was likely to obtain a final injunction. The breach of confidence claim added nothing and, in relation to the relationship material, could only be maintained by him.
5. The harassment claim did not meet the interim threshold. Speech must be sufficiently serious to cross the line between unattractive or unreasonable behaviour and oppressive and unacceptable conduct capable of sustaining criminal liability under section 2 of the Protection from Harassment Act 1997. The test is objective and requires a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person and calculated to cause, and actually causing, alarm, fear or distress.
6. The injunction was limited to the First Claimant’s claim. The claim form was to be served promptly, and the order was subject to review after three weeks, with liberty for the defendant to seek variation or discharge.