HXZ v NMX

An urgent interim injunction may restrain publication of private information where the claimant has a reasonable expectation of privacy and publication is unlikely to be justified by freedom of expression or public interest. Naked images, intimate relationship details and medical information ordinarily engage privacy rights. Prior disclosure does not necessarily remove the expectation of privacy, because privacy law also protects against intrusion and repetition.

Where threats to publish are probably blackmail, the weight given to Article 10 rights is substantially reduced. Truth is not, by itself, a defence to blackmail or harassment. Repeated demands for money accompanied by threats to publish private material may also constitute harassment, including where a sufficient part of the impact is suffered within the jurisdiction.

The claimant sought urgent, without-notice interim injunctions against the defendant, with whom he had been romantically involved. He alleged repeated demands for money accompanied by threats to publish naked photographs, medical allegations and intimate information to his family, business associates and the public.

The claimant relied on misuse of private information and harassment. The court considered anonymity, open justice, the appropriateness of a without-notice application, the interim privacy threshold, the harassment threshold and possible defences. The defendant did not appear. The central questions were whether interim protection was justified and whether the alleged conduct gave rise to good prospects of success in the proposed claims.

1. Open justice and procedure. The court granted anonymity but refused to hold the hearing in private. Derogations from open justice must be strictly necessary and no wider than required. The urgent without-notice procedure was justified because notice might have enabled further publication before an injunction could be obtained.
2. Misuse of private information. The court applied the two-stage test: whether the claimant had a reasonable expectation of privacy, followed by an intense and proportionate balancing of Article 8 and Article 10 rights. Naked photographs taken without consent, intimate relationship information and medical information fell within the protected private sphere. Existing disclosure did not necessarily defeat the claim, since the tort also protects against intrusion and repetition.
3. Interim threshold. Applying section 12(3) of the Human Rights Act 1998 and the principles in Cream Holdings, the claimant had sufficiently favourable prospects of establishing at trial that publication should not be allowed. The threats were probably blackmail. There was no general public interest in publication of another person’s sex life, and the defendant could tell her own story without making blackmail-style demands or disclosing private information.
4. Harassment. The repeated demands and threats constituted a persistent, deliberate, unreasonable and oppressive course of conduct targeted at the claimant. The conduct was calculated to cause alarm and distress and was objectively unreasonable. The claimant had established sufficient effects within England, notwithstanding that he mainly lived abroad. The asserted truth of the allegations did not provide a complete defence.
5. Disposition. Damages were inadequate because privacy and reputation could not be fully restored after publication. The court granted an urgent interim injunction restraining publication of the claimant’s private and confidential information and photographs, together with a limited anti-harassment injunction, pending the return date.