TSE & Anor v News Group Newspapers Ltd

On 19 May 2011 I granted an injunction to prohibit the publication of (a) any information tending to identify the Claimants as having had a sexual relationship with one another; or tending to identify either of the Claimants as having had an affair, or (b) any other information identifying or in any way tending to identify the Claimants or either of them as being the persons who have applied for this order, save for that contained in the public part of the order I made on 19 May or in this public judgment.

The hearing on 19 May was held in public. The order of 19 May is a public document. It is available to be inspected, except the Confidential Schedule. The hearing on 13 May had been held in private. Sharp J did not deliver a public judgment in view of the imminence of the return date. This judgment includes all that needs to be said about the hearing on 13 May. A detailed note of that hearing was kept and has been provided to me. It was made by Laura Tyler of the Claimants’ solicitors.

These are the circumstances in which I made the order and the reasons why I made it.

The case concerns an adulterous relationship between the Claimants where both the man and the woman want to preserve their privacy. Neither of them is the source of NGN’s information. The male Claimant, referred to as TSE is a married footballer.

On 13 May Sharp J made an order substantially to the same effect. That order was stated to run until 19 May (“the return date”). On 16 May both the Claimants and the Defendant (“NGN”) were represented by leading counsel. NGN did not resist the injunction, but it did not consent to it, or offer undertakings to the court. It adopted the same stance on 19 May. Mr Spearman submitted a written argument to the court stating that NGN did not resist the making of the order but did not consent to the making of it. He did make submissions on the form of the order, all of which Mr Caldecott accepted, with the result that when Mr Caldecott came to court he was able to produce to me an order which was in terms which Mr Spearman had agreed were appropriate in the event that the court decided to make the order at all.

The form of the order I made, and the stance adopted by NGN are similar to another case in which Sharp J handed down a written judgment on 11 May: MJN v News Group Newspapers Ltd [2011] EWHC 1192 (QB).

NGN did not advance any argument that publication ought not to be prohibited in the public interest. This point is considered further below.

On 12 May 2011 a journalist working for The Sun contacted a representative of the man’s club to inform him that The Sun intended to run a story on 13 May alleging that the man had conducted an adulterous relationship with the Claimant referred to as ELP.

In a witness statement made by him the man states that the information in question has hitherto been private and explains the effect that he says that publication of this information would have if it were published. It would have a devastating effect on his marriage, on his wife and particularly their children. He states that it has become common for footballers whose private lives are exposed by the media to be booed during games and be the subject of cruel chants.

ELP states that a reporter from The Sun came to where she lived some months ago. She met him on the doorstep. He referred to the relationship with the man and said that The Sun would be willing pay a lot of money for that story. She said she would not talk and asked the reporter to leave. She does not know the source of the story. She did not, and does not, want the story to be published. She subsequently received messages from the reporter asking her to talk, but she did not reply. She received a call from Ms Tyler and instructed Schillings to act for her in these proceedings.

Ms Tyler made a witness statement dated 13 May. In it she recounts conversations between herself and Mr Walford of NGN. In one conversation Mr Walford stated that NGN believed it was in the public interest to publish that the man was having an extra-marital affair because “we are exposing his hypocrisy”. That argument was not advanced to Sharp J and has not been advanced before me. No doubt NGN came to appreciate that, in the light of numerous judgments by different judges of the House of Lords, of the Court of Appeal, of this court and of the European Court of Human Rights, it had no prospect of success. Some of these cases are cited below.

The Claimants asked for the hearing to be, and it was, held in private because it was necessary to inform the court of the information in respect of which the Claimants were seeking an injunction. A public hearing would have defeated the purpose of the application.

Ms Tyler asked for, and Sharp J granted, anonymity for the Claimants because they expected that if their names were given, that would lead to serious intrusion into the private lives of themselves and their families.

If an injunction to restrain the disclosure of private or confidential information is to be effective, the court must either grant anonymity to the claimants, or refrain from giving any information in the order or any judgment about the nature of the information. Naming the claimants in this case would in practice also disclose the nature of the information sought to be protected. So the Claimants asked not to be identified. Sharp J was satisfied that that was necessary if an effective order were to be made at all. I too am satisfied that that continues to be necessary.

On 18 May Ms Tyler made a second witness statement. In it she informed the court of the identities of the media organisations which had been served with the order: Associated Newspapers, Express Newspapers, Guardian Media Group, Independent News and Media, MGN, Telegraph Media and Times Newspapers.

The Court is bound by the Human Rights Act 1998 (“HRA”). According to that, the Claimant must first establish that his or her right to respect for private life under Art 8 is engaged (that is whether the information is in principle private), and second that relief is appropriate having regard to Art 10, the right to freedom of expression, and the matters set out in s.12(3).

As to the first question, Mr Caldecott submits the following, which cannot be disputed. It is now clear the test is whether the Claimant had a reasonable expectation of privacy in relation to the information in question. See McKennitt v Ash [2008] QB 73 per Buxton LJ (with whom Latham and Longmore LJJ agreed, at para 11, further cited in Murray at para 27).

The question is objective. As Lord Hope put it in Campbell v MGN Ltd [2004] 2 AC 457: “The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant..” In Murray v Express Newspapers Ltd [2009] Ch 481the Court of Appeal stated: “The question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher..” [para 36]

As to the second, In Re S [2005] 1 AC 593 Lord Steyn identified four propositions as emerging from Campbell v MGN Ltd as “the new methodology” to be applied by the courts where both articles 8 and 10 are engaged:

It is clear that the performance of Lord Steyn’s ‘ultimate balancing test’ requires an “intense focus on the comparative importance of the specific rights being claimed in the individual case”; and that such applications “fall to be decided not on the basis of rival generalities but by focussing on the specifics of the rights and interests to be balanced in the individual case”. See In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, at para.17 and Clayton v. Clayton [2006] EWCA Civ 878; [2006] Fam 83 at para 64 (Sir Mark Potter P).

According to s.12(3) of the HRA, an injunction before trial is not granted unless the court is satisfied that the applicants are likely to establish that publication should not be allowed. And in coming to its finding on that the court is obliged to and does have regard to the matters set out in s.12(4), which reads:

“(4)

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)

the extent to which—

(i)

the material has, or is about to, become available to the public; or

(ii)

it is, or would be, in the public interest for the material to be published;

(b)

any relevant privacy code.”

The relevant privacy code in the case of NGN is that of the Press Complaints Commission which provides, so far as material:

3.*Privacy

i)

Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii)

Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.

The public interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

1.

The public interest includes, but is not confined to:

i)

Detecting or exposing crime or serious impropriety.

ii)

Protecting public health and safety.

iii)

Preventing the public from being misled by an action or statement of an individual or organisation.

2.

There is a public interest in freedom of expression itself.

3.

Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.

4.

The PCC will consider the extent to which material is already in the public domain, or will become so.

5.

In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child”.

No evidence has been produced by NGN that the Claimants have misled the public, nor has it argued or attempted to demonstrate that there is any basis of upon which the court should “over-ride the normally paramount interest the child[ren]”. The editor of The Sun has not offered an explanation such as is referred to in para 3 of the paragraph headed Public Interest. It is a requirement of the law as well as of the PCC Code that the Court should have regard to the impact of publication on the Claimants’ children (see, for example, CDE & FGH v MGN Limited [2010] EWHC 3308 (QB) at [7]).

For decades both the English Courts and the ECHR have recognised a reasonable expectation of privacy in relation to sexual relationships; sexual conduct being “an essentially private manifestation of the human personality” (Dudgeon v UK (1981) 4 EHRR 149 at [52] and [60]). It is sometimes forgotten that ten years before the HRA Stephens v Avery [1988] Ch 449, afforded protection to information concerning an adulterous lesbian relationship. At p455 Sir Nicolas Browne-Wilkinson, V.-C said “To most people the details of their sexual lives are high on their list of those matters which they regard as confidential”. And this was consistently applied in what were then cases based on the law of confidentiality. In Barrymore v News Group Newspapers Limited [1997] F.S.R. 600 Jacob J said: “The fact is that when people kiss and later one of them tells, that second person is almost certainly breaking a confidential arrangement.”

The present case is, as already stated, not a case of kiss and tell. It is one in which both parties to the past relationship wish to keep it private.

As recently as last week the ECHR restated the position in Mosley v. The United Kingdom - 48009/08 [2011] ECHR 774 (10 May 2011):

“119 The Court observes at the outset that this is not a case where there are no measures in place to ensure protection of Article 8 rights. A system of self-regulation of the press has been established in the United Kingdom, with guidance provided in the Editors’ Code and Codebook and oversight of journalists’ and editors’ conduct by the PCC (see paragraphs 29-38 above). This system reflects the 1970 declaration, the 1998 resolution and the 2008 resolution of the Parliamentary Assembly of the Council of Europe (see paragraphs 55 and 58-59 above). While the PCC itself has no power to award damages, an individual may commence civil proceedings in respect of any alleged violation of the right to respect for private life which, if successful, can lead to a damages award in his favour. In the applicant’s case, for example, the newspaper was required to pay GBP 60,000 damages, approximately GBP 420,000 in respect of the applicant’s costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices. Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly’s 1998 resolution (see paragraph 58 above). Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified (…).

…

131.

The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media ... The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination.”

The HRA s.12 requires the court to have regard to the matters set out in sub-section (4) whether they are raised by a defendant or not. So the fact that NGN has not argued before the court that it is in public interest for the material to be published, or that the material has, or is about to, become available to the public, does not relieve the court of the obligation to have particular regard to these matters.

For this reason Ms Tyler has put before the court evidence of publication concerning these proceedings which have been made through various electronic media, including Twitter, in addition to the publications made on the print and online editions of The Sun and The Mail.

The court does not grant injunctions which would be futile. But the fact that these publications have occurred does not mean that the there should be no injunction in this case. I explained the reasons in JIH v News Group Newspapers Ltd [2011] EMLR 9, [2010] EWHC 2818 (QB) (the subsequent judgment of the Court of Appeal did not affect this part of the judgment):

“58 It is important to bear in mind what privacy injunctions are intended to achieve. In some privacy cases the information sought to be protected will be truly secret. One example may be the paternity of a child where the mother has successfully withheld that information (as happened in the case of a French Minister of Justice: "Minister's Mystery Baby" The Observer, Sunday 4 January 2009). Another example may be that the applicant is suffering from a particular condition or disease (eg the case of the late President Mitterrand Plon (Societe) v. France 58148/00 [2004] ECHR 200; 42 EHRR 36). Such cases bear some comparison to cases about trade or official secrets: if the secret is revealed there is nothing the court can do to undo what has been done. In cases of trade or official secrets an injunction may thereafter be futile.

59.

But in many privacy cases the information sought to be protected is not secret in that sense, or, even if it is, once the secret is revealed, there is still something to be achieved by an injunction. Art 8 is about interference with a persons' private and family life. There may be such interference by the repetition in the press of information even when that information is not secret or unknown. As Plon v France (paras [14], [34] and [47]) illustrates, this is be because the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person and but also of those who are involved with him (in that case his widow and children) in the matters which are the subject of the action. It may also lead to harassment: von Hannover v. Germany (59320/00); (2005) 40 EHRR 1 para [68]. The widow and children were parties in the Plon case in the national courts. But the obligation of the Court under s.6 of the HRA (not to act incompatibly with Convention rights) obliges the Court to have regard to the Art 8 rights of persons who are not parties to the action, as well as to the rights of the claimant”.

In the present case the effect of the publications to which Ms Tyler referred me is that private information which was secret is no longer secret. So to that extent one purpose of the injunction has been defeated. But the extent of the publications, and the tone of the publications demonstrates that the evidence put before Sharp J was correct. There is a pressing need for the injunction to prevent harassment and unjustified intrusion into the lives of the Claimants and the man’s family.

In the course of his submissions Mr Caldecott referred to the difficulty that claimants may have in enforcing injunctions against those who publish private information on the internet. The difficulties are well known. However, as the ECHR confirmed in the Mosley case, whether or not an injunction is granted, claimants continue to have the right to claim damages, whether or not those who publish the information have had notice of any injunction.

One of the purposes of handing down judgments such as this is to explain the law and to attempt to encourage informed reporting and to forestall misinformed reporting.

At the hearing on 13 May NGN had told Sharp J that it would publish a report and that it would only refer to the man as a married premier league footballer. However, on 14 May NGN published in The Sun an article headed “New ace gags Sun on romps revelation” and gave other information about him which limited the number of individuals who might be the claimant to very few. Accordingly, Ms Tyler submitted that NGN has been in breach of the order. That is not an issue that I have to rule upon in this judgment.

But there is another effect of NGN giving the details it did give about the Claimants. It thereby put the other individuals who fitted the description it gave in the article under suspicion and exposed them to the risk of intrusion into their private lives and harassment. This is a consequence of the way The Sun chose to report the proceedings. It need not have been a consequence of the claimants’ action in bringing the proceedings.

The stance adopted by NGN in this case (neither resisting the injunction, nor consenting to it) had the consequence that The Sun’s article about the case under the heading “New ace gags Sun …” was accurate, whereas it would have been less easy to print such a headline if NGN had offered undertakings or otherwise avoided the need for the court to issue an injunction. There are other types of cases in which Defendants neither resist an injunction nor consent to it. An example are the cases where ISPs are ordered to provide to those wishing to make claims about interference with their privacy the information required to identify those who have made the publications complained of: eg G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB). In those cases the ISPs do that in order to have the protection of a court order as a defence if a complaint is made by the individual who has published the information on the internet. There is no such reason why NGN should adopt this stance in this case, nor why NGN adopted it in the MJN case. NGN does not explain why it adopts it. It is the court’s experience that in the past NGN has submitted to injunctions which it could not defend, or settled cases, as it did in JIH. If parties choose to exercise their right neither to oppose nor consent to injunctions, it has the further effect of taking up the time of the court that would be available to other litigants.

Before leaving this case there is one further observation to be made. In this case the claimant is a footballer, and the injunctions granted in this court are sometimes reported as being disproportionately of benefit to footballers and other sportsmen. But as the other cases cited in this judgment show, there is no stereotype which can be used to categorise claimants in privacy actions, and many of them are women, as is ELP. The claimants in the following cases were women and children: McKennitt, Campbell, Murray, S, FGH, Stephens, Plon (the successful claimants were the widow and family of the late President Mitterrand), von Hannover, Clayton. A number of the cases related to claimants who were gay or lesbian: Dudgeon, Stephens and Barrymore. This is not a case of a woman being silenced by an injunction: ELP is an applicant for the injunction together with a man, after she had resisted an offer of money to publish her story. FGH was also a woman. Many of the cases are about information which is not sexual: McKennit, Campbell, Murray, S, Plon, von Hannover, Clayton.

The variety of privacy claimants was illustrated in the first edition of Tugendhat & Christie on the Law of Privacy and the Media OUP, 2001) at p218 (see p548 of the 2^nd edn, 2011), which included the following passage:

“Since the Douglas case, the court has granted injunctions in confidence to restrain the ex-girlfriend of a film actress’s brother from disclosing to the press private family photographs of the actress and her young children obtained during her relationship with the brother, to stop the unauthorised publication of sexually explicit photographs of a pop singer, to prevent the publication of unauthorised photographs of a television actress walking around topless in a hotel garden, and less salaciously, to prevent further publication of an unauthorised photograph of Gracie Attard, the surviving, formerly conjoined twin”.

All of the claimants in that passage were women or children, some rich, and some not rich. The references in the footnotes are as follows: W v W (HC, 22 February 2001, Lloyd J); A v B and C (QBD, 2 March 2001, Mackay J); Holden v Express Newspapers Ltd (QBD, 7 June 2001, Eady J); Re A (Fam, 15/16 June 2001, Bennett J).