TRANSPORT SALARIED STAFFS’ ASSOCIATION (TSSA) v PERSONS UNKNOWN RESPONSIBLE FOR PUBLISHING MATERIAL ON THE WEBSITE “REEL NEWS”

When interim relief may affect freedom of expression, the court must apply Human Rights Act 1998, section 12. The applicant must have taken all practicable steps to notify the respondent, unless there are compelling reasons not to do so. The applicant must also satisfy the statutory likelihood test and show that the proposed relief is necessary, proportionate and justified by the balance of justice. A mandatory order requiring third parties to remove material already published requires particular caution. The court must consider prior engagement, the applicant’s delay, the extent of harm, the availability of a prompt return hearing, and the practical effect on third parties and freedom of expression. Restraining further disclosure by a contracting party may be justified even where immediate removal by publishers is not.

The claimant sought urgent interim injunctions concerning a video published on the Reel News website by the first and second defendants. The video featured the third defendant, a former employee, and concerned matters covered by a confidential COT3 settlement agreement. The claimant sought to restrain further disclosure by the third defendant and to require the publishers to remove the video and take consequential steps affecting third parties, including journalists who had already viewed it.

The application was heard out of hours under section 12 of the Human Rights Act 1998. The central issues were whether the notification requirement had been met, whether publication was likely to be prohibited at trial, and whether the wider mandatory order was justified by proportionality, public interest and the balance of justice.

1. Notification under section 12(2). The claimant had not initially taken all practicable steps merely by sending letters before claim. Since the application notice identified email addresses and stated that the defendants should be served, the application could practicably have been brought to the defendants’ attention when issued. The court adjourned to permit email and telephone contact. After those steps, section 12 no longer barred interim relief.
2. Further disclosure by the third defendant. The claimant established that restraining further action by the third defendant was necessary, appropriate and proportionate. The confidentiality obligations in the COT3 agreement, including restrictions on disclosure of information relating to the grievance and compromised claim, justified an injunction against further disclosure or interviews concerning confidential information.
3. Likelihood under section 12(3). The claimant did not establish, for the purposes of the application concerning the already-published video, that it was likely to prove at trial that the first and second defendants had acquired the information with the relevant knowledge of the non-disclosure agreement and confidentiality obligation. The prior communications supplied a transcript and received a detailed rebuttal, but did not identify the non-disclosure agreement as a reason why publication would be unlawful.
4. Wider mandatory relief. Immediate removal of the video and consequential orders affecting third parties were not justified. The court considered the delay, the prior engagement, the fact that the video had already been online for more than 24 hours, the prompt return date, the inclusion of the claimant’s full rebuttal, proportionality, public interest, and the implications for third parties’ freedom of expression. The order was therefore granted against the third defendant but refused insofar as it required removal or other immediate action by the first and second defendants.
5. The claimant was required to restore the application before the court by no later than 10 May 2022, subject to availability.