MNB v News Group Newspapers Ltd

On 1 March 2011 Henriques J granted a temporary injunction with a short return date to prevent the disclosure of private information (“the information”) about the Claimant. The hearing was on short notice to the Defendant. It was conducted over the telephone. It was also held in private, and the application that it should be was not opposed. The application for an injunction was however contested. The parties were represented by the same counsel who have appeared before me, that is, Hugh Tomlinson QC for the Claimant, and Richard Spearman QC for the Defendant. The Claimant had been informed earlier that day of the Defendant’s intention to publish a story in the Sun newspaper which concerned his sexual relationship with another person; and two public interest justifications for its publication were advanced by the Defendant. By the time of the telephone hearing, the principal public interest justification had been abandoned.

A full note of the hearing has been produced by the Claimant’s solicitors. The judge’s attention was drawn to the relevant considerations of law including those relating to article 8 and article 10 of the ECHR and the provisions of section 12(3) of the Human Rights Act 1998. He concluded the Claimant was likely to succeed in establishing at trial that publication of the information should not be allowed.

The judge ordered that the Claimant could be anonymised. Paragraph 1 of the order made prohibited the publication until the return date (4 March 2011) of:

“(a)

Any information concerning the subject matter of these proceedings or any information identifying or tending to identify the applicant save for that contained in this Order and in any public judgment of the court given in this action.

(b)

Any information concerning the fact or details of any sexual relationship between the Applicant and the person named in the Confidential Schedule to the Order…..”

Paragraph 1 went on to provide that:

“nothing in paragraph 1 of this Order shall prevent the Respondent from publishing, communicating or disclosing any material that before the service of this Order was already in, or that thereafter comes into, the public domain as the result of national media publication (other than as a result of this Order or a breach of confidence or privacy)”.

At the start of the return date hearing before me, I was told the application for an interim injunction was no longer opposed. Subject to its right to apply to apply to discharge or vary the Order, the Defendant has agreed therefore that the order made by Henriques J should continue until trial or further order (including therefore a paragraph in the same terms as that set out in paragraphs 3 and 4 above). I indicated to the parties at the hearing, I approved those terms and therefore the interim order is now in place.

There is no doubt in my view that the Claimant’s article 8 rights are engaged, both in relation to the subject matter of the action, and the identification of him as the Claimant. There is no doubt either that publication of the information as to the fact or details of the affair will result in some interference with the Claimant’s private life. It is not currently suggested by the Defendant that there is a public interest in the publication of the information or that there is any other reason for it to be disclosed. It is not suggested for example that the information was in the public domain. I am satisfied in accordance with section 12(3) of the Human Rights Act 1998 that the Claimant is likely to establish at trial that publication of the information should not be allowed.

Because provisions in the order agreed between the parties derogate from the principle of open justice, they are subject to the approval of the court. In this case, I am satisfied that the particular provisions in it which derogate from that principle are necessary.

The issue now between the parties concerns an article published by the Defendant after the hearing before Henriques J (“the article”). The article was published in the Sun newspaper on 3 March 2011 and remains available online. It referred to the fact that an individual with a particular occupation had “gagged” the “Sun”. The Claimant says its publication has led to the publication of articles in other newspapers and which continue to be available on the internet in substantially similar form to the article. It is said the article’s contents breach the order made by Henriques J.

Mr Tomlinson submitted a written skeleton argument for the purposes of this hearing which dealt with whether the temporary injunction granted by Henriques J should be continued until trial or further order; Mr Spearman did not. I was not provided with a written argument by either side on any of the matters which are now in dispute. The Claimant’s complaint about the article was raised the evening before the hearing, and to that extent, my adjudication on it, is not made as part of the return date hearing ordered by Henriques J.

A further issue has been raised by the Defendant, albeit very briefly, as the hearing began concerning the hearing of this application in private. At the outset of the hearing, Mr Tomlinson invited me to hear the matter in private pursuant to CPR 39.2(3)(a)(c) and (g). Mr Spearman invited me to consider making an order which permitted the public to remain, and to impose reporting restrictions in the event that anything was said which impinged on the Claimant’s article 8 rights. He said that it was possible for example to conduct appeals before the Court of Appeal in such cases in this way; and there shouldn’t be one rule of thumb for hearings before the Court of Appeal and a different one at first instance.

At the outset of the hearing, before it was ordered to be in private, members of the public were present in court as were representatives of the press. Mr Spearman did not address the consequences for the privacy interests of a claimant which may result from the inadvertent revelation to third parties of information the application is designed to protect, during the course of a hearing. Mr Spearman did not suggest either a form of order the court might make, still less a mechanism to overcome the considerable practical difficulties which in my judgment would arise in preventing the dissemination of the information in the event of inadvertent disclosure; nor did he address the problems which might arise in the event that an inadvertent disclosure resulted in a subsequent “leak.”

A hearing at first instance usually ranges widely over the facts and matters in issue; and this is what occurred in this case. It would have been impossible in my view for the issues which arose to be properly explored without referring in some detail to the information concerned; and without revealing the identity of the Claimant, or matters which would be likely to lead to his identification. This problem was compounded by the absence of written arguments on the matters in issue and by the need to refer in some detail to the article. I considered it to be necessary therefore on the facts of this case for the hearing before me to be in private, though of course the matter has to be kept under review, including during the course of the hearing itself.

When a matter comes before the Court of Appeal, the position may well be different to the one faced by the court at first instance: in particular it is very likely that the matters in issue will have been narrowed and reduced to writing, and the parties and the Court are also much more likely to know what the factual “parameters” of the case are.

After the hearing, the Defendant’s solicitors provided me with a copy of the decision of the President, Sir Mark Potter, in Re Child X [2009] EWHC 1728 (Fam). It was said it would be relevant to my consideration whether hearings like the present one are capable of being conducted in the presence of accredited media representatives without violating the article 8 rights of the claimants, a position which prevails in the Family Division. I do not think the positions are analogous. The jurisdictional basis for the attendance of accredited media representatives at hearings which are private and which are not open to the general public in the family courts is statutory: the relevant FPR (10.28) was inserted into the FPR by statutory instrument. There is no jurisdictional basis so far as I am aware (and certainly none was suggested) which would permit this court to distinguish between the media and members of the public for this purpose.

Mr Tomlinson prefaced his submissions by making it clear that the Claimant has no objection to the Sun criticising the application, the grant of the injunction, or the reasoning of the judge who granted it. This he accepts is a proper exercise of the Defendant’s article 10 rights: the question of how the law is enforced is unarguably a matter of public interest. However he submits that parts of the article are published in breach of the order made by Henriques J, and/or that it contains private information about the Claimant which he is likely to succeed in establishing should not be published at trial. Either way he submits, an injunction should be granted prohibiting its further publication and requiring its removal from the Defendant’s website.

Mr Tomlinson says the purpose of paragraph 1 of the Order is to stop “jigsaw identification”: that is, different newspapers publishing different items of information about a claimant, none of which, on their own directly identifies the claimant but which risk doing so when put together. It does so by providing “bright lines” between what is permissible and what is not; in circumstances where a so-called “super injunction” would be regarded as too draconian, but nonetheless a claimant’s article 8 rights need to be protected. The words of the order are crystal clear: all that can be said is what is in the order, and what is in a public judgment; and at the time the article was published there was no public judgment.

He submits had the Defendant wanted to say more than that they could and should have invited the judge to widen the terms of the order he was asked to make by the Claimant, or they could and should have asked the Claimant to permit more to be said; or they could and should have invited the court to vary the terms of the Order at the return date. Had they done so, the Claimant would have agreed to various details being mentioned: in particular, that the Claimant was wealthy and married; and that he was a senior business executive.

However, Mr Tomlinson submits there was no legitimate reason to give the Claimant’s occupation: this is merely a weakened version of the hopeless public interest argument advanced before the judge and now abandoned. There is no public interest justification advanced (any more), deriving from the Claimant’s occupation for the publication of the information. So Mr Tomlinson asks, how can there be any in talking about the fact that the Claimant happens to have a particular occupation? It could be said the Claimant is wealthy, so the public can understand the sort of people who are obtaining injunctions of this nature; but to relate the affair to the fact that the Claimant has a particular occupation is to engage in rhetoric, it does not contribute to a debate of general public interest.

Mr Tomlinson submits that in any event, the Claimant is likely to succeed in establishing at trial that what has occurred is a patent misuse of private information; and that publication of the matters objected to should not be allowed. Though the Claimant has not been named, on any view, Mr Tomlinson submits he is identifiable; and the article about a private sexual relationship will be distressing to both persons involved. In addition, he says there are several family members of the Claimant who know the article is written about him, and that is sufficient to complete his cause of action. It has to be assumed for example, that the persons quoted know who is being referred to. In addition, most, if not all of the readers of the Sun would know the name of one person with the occupation (the Claimant) and would know or suspect that he was the person concerned.

Further he submits there can be no article 10 justification for the publication. The Defendant accepts it is unlikely to succeed in publishing the central story: and if so, why should there be any more public interest in publishing it in this way? There is simply no misconduct here of a legally relevant nature: and the information doesn’t contribute to a debate of general interest. The Defendant is not entitled to use the Claimant’s private information to do that.

He also submits that the Defendant cannot rely on what is now in the public domain to defeat this part of the argument, first because the continuing publication of private information is itself a fresh infringement of the Claimant’s privacy rights and different considerations to those which arise in confidence apply; and second, because insofar as the material is in the public domain the Defendant itself has put it there; and cannot rely on its own wrongdoing to pull its case up by its bootstraps.

The Defendant submits in summary that publication of the article is not a breach of the order, nor does it contain any private information; and that no such injunction as is now asked for should be granted.

Mr Spearman complains first about the process. He submits it is unsatisfactory that the complaint has gone from a mention in a letter the evening before the hearing to an application asking for an order. He also submits that it would not be right for the court to embark on a resolution of whether the Defendant’s conduct does or does not amount to a breach of the order; the court should be wary of exploring such issues he says because the proper place for them to be resolved is in committal proceedings: the position is a fortiori he submits where matters are dealt with “on the hoof” in this way. This would not however prevent the court from doing something else: changing the original order for example, or granting a new one.

Second, he submits the Defendant is clearly not in breach of paragraph 1 of the order. The Claimant is not named, and he is not identified. The details to which objection is taken (“the details”) do not tend to identify him. Nor do they concern the subject matter of the action. The subject matter of the action is simply private information about the fact of the sexual relationship. This does not include his occupation or whether he is married, or what others involved think about it. Far from being a flagrant breach therefore he says, quite obviously it is not. And in any event, the order made should be construed restrictively because there are committal sanctions if it is breached, and the benefit of the doubt should be given to the Defendant.

Mr Spearman submits moreover that it is not appropriate to restrain publication because the details are already in the public domain – and to that extent, an injunction would now serve no useful purpose. In this context, he refers me to publications in other newspapers which continue to be available online; and to Vestergaard Fransden A/S v Bestnet Europe Ltd [2009] EWHC 1456 (Ch), [2010] FSR 29 and British Broadcasting Corporation v HarperCollins Publishers Ltd and others [2010] EWHC 2424 (Ch). The cases support, he submits, the proposition that if information is no longer confidential then no injunction should be granted to protect it, even as against a person who was under an equitable duty not to disclose it. Further he submits that if any of the details are likely to be put into a public judgment, in which the Claimant is anonymised, it would be futile to make an order requiring what the Defendant has published to be taken down.

As to Mr Tomlinson’s alternative argument, he submits, shortly, that the details cannot sensibly be called or categorised as private information of the nature the court should restrain, and the article doesn’t raise the Claimant’s article 8 rights at all in particular because it doesn’t identify him. If it does, then the free speech, article 10 rights of the Defendant should prevail. The comments the Defendant is entitled to make about the grant of the injunction cannot be made without identifying the Claimant as having a particular occupation, and the inclusion of that fact is a vital part of the story.

In Ntuli v Donald [2010] EWCA Civ 1276, the Court of Appeal had to consider the orders it was appropriate to make in cases involving allegedly private information. Maurice Kay LJ said this [53] and [54]:

“This is an essentially case-sensitive subject. Plainly Mr Donald is entitled to expect that the court will adopt procedures which ensure that any ultimate vindication of his Article 8 case is not undermined by the way in which the court has processed the interim applications and the trial itself. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which Mr Donald is entitled. In my judgement, in view of the terms of the substantive injunction and the circumstances of this case, the appropriate restriction on publicity is one that limits reporting and publicity to what is contained in this judgment, together with any ancillary orders necessary to fortify such an order. I am simply unpersuaded that greater restriction is necessary at this stage. There is nothing in this judgment that is significantly invasive of Mr Donald's private or family life. ”

“(2)

Anonymity

It seems to me that what I have said in relation to the superinjunction element applies also to the question of anonymity. Provided that publicity is limited to what is contained in this judgment, there is no justification for continued anonymity. I have in mind the judgment of Lord Rodger in Guardian News and Media Ltd [2010] 2 WLR 325, [2010] UKSC 1, at paragraphs 63-64. The material in respect of which Mr Donald has been found to have a reasonable expectation of privacy is not detailed in the judgment. The material in the judgment does not attract a reasonable expectation of privacy. I note that an order restricting publicity to the contents of a judgment, in relation to which one party was anonymised but the other was not, was recently made by Tugendhat J in Gray v UVW [2010] EWHC 2367 (QB): see in particular paragraphs 44-63. There the continued anonymity of the defendant was justified by a significant risk that lifting his or her anonymity might have serious consequences for his or her private life which consequences might not be remediable. I do not consider that the same can be said of Mr Donald in the present case. In my view, it would have been possible and appropriate for Eady J to have written his judgment in a publishable form. Moreover, to have done so would have avoided the risk that anonymisation can give rise to, namely that of "jigsaw" identification, whereby anonymisation may be undermined by correctly identifying someone as a result of relating separate snippets of information or, equally unfortunately, it may lead to the wrong person being identified by the media misaligning the snippets. We were shown one recent example of this.”

In JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, the Court of Appeal considered the issue of reporting restrictions following the making of orders to prevent the publication of private information. The parties had agreed to an order in substantially similar terms to that made by Henriques J. (The claimant in that case was represented by Mr Tomlinson, and the Defendant, by Mr Spearman). The judge below had approved that part of the order which prohibited the publication of “any information concerning the subject matter of these proceedings save for that contained in the public judgment of the court” but refused to make an order that the identity of the Claimant should not be disclosed (though he imposed a temporary restriction on the Claimant’s identification pending an appeal): see JIH v News Group Newspapers LtdNo1 [2010] EWHC 2818; and JIH v News Group Newspapers Ltd No2 [2010] EWHC 2979. The Court of Appeal allowed the claimant’s appeal, and directed that he be granted anonymity in connection with proceedings until trial or further order.

At [21] the Master of the Rolls said this:

“In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:

(1)

The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2)

There is no general exception for cases where private matters are in issue.

(3)

An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4)

Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5)

Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.

(6)

On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7)

An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8)

An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.

(9)

Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.

(10)

Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.

Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions.”

The Master of the Rolls also made at direction at [42] that:

“the extent to which the facts of, and individuals involved in the case can be reported is limited to the facts and matters in this judgment and the two judgments of Tugendhat J.”

The order made following the hearing in the Court of Appeal was in these terms:

“Until trial or further Order in the meantime, the Respondent must not publish…any information

(a)

concerning the sexual relationship between the Appellant and the individual named in the Confidential Schedule or

(b)

concerning the identity of the Appellant as the claimant in these proceedings or as the person who has obtained this order, or

(c)

concerning the identity of the individual named in the Confidential Schedule as an individual with whom the Appellant had a sexual relationship.”

An order such as the one made by paragraph 1 in this case, may be made when the court determines the claimant is entitled to an interim injunction in a case concerning private information, as the observations made in the cases cited above and the order made by the Court of Appeal in JIH, make clear. Such orders are made to give effective protection to the article 8 rights of a claimant, at least on an interim basis. The precise ambit of such orders needs to be decided on a case by case basis. It is not however suggested by the Defendant that such orders are wrong in principle. Their obvious purpose is the protection on the one hand of the ability of the press to report the proceedings, and on the other, of the article 8 rights of the claimant against the risk in particular of “jigsaw identification” if he or she is anonymised. This could defeat the purpose of an interim injunction, and indeed potentially, the purpose of the action itself.

By its nature, jigsaw identification involves the separate publication by different entities of different items of information which do not identify the claimant when looked at separately, but do so or risk doing so, when they are put together. Such information therefore does not have to actually identify a claimant. Nor need it be private. The conjunction of publicly available information with the report of proceedings may well lead to “two and two” being put together.

It is to be noted that it does not appear that the Defendant addressed any specific argument to Henriques J on the material part of paragraph 1 of the Order. Indeed in the context of his argument on whether the Claimant should be anonymised (which the Defendant did object to) Mr Spearman appears from the solicitors’ note of the hearing, to have accepted that the form of the order asked for, and ultimately granted by the judge, restricted what could be reported to the fact that an unnamed person got an injunction relating to a sexual relationship with another unnamed person.

I accept, as Mr Spearman submits, that the court should be wary of making findings of fact on matters which may be material in the event committal proceedings are taken. I make no finding of contempt; such issues must be dealt in due course, in the event they may later arise. I am also not exercising the court’s jurisdiction to restrain an anticipated contempt, or in contempt proceedings, (where the standard of proof may be a criminal, rather than a civil one: see for example, Coe v Central Television plc [1994] EMLR 433, at 441).

However, in my view, the considerations to which Mr Spearman refers should not prevent the Claimant from seeking to protect his article 8 rights on an interim basis (by preventing the publication of details which may lead to his identification); nor should they inhibit the court from granting such an order in an appropriate case to ensure the orders that the court makes are not undermined and/or their underlying purpose is complied with.

I have not addressed all the arguments advanced by both sides, some of which might merit further evidence or argument, because it is sufficient for the purposes of this application for me to state the following. First, in my judgment the purpose of the order made by Henriques J was to prevent the publication of items of information which actually identified the Claimant or which tended to identify him (that is, they might, in conjunction with other information as explained above). Second, publication of the details to which particular objection is taken fall within the category of information which tends to lead to his identification. Third, the subject matter of the action is the affair; comment by relatives or others which reveal information about the affair (for example, its length, when it occurred, the parties’ reaction to what has occurred, or their current status) is therefore information concerning the subject matter of these proceedings.

Fourth, the Claimant is likely to establish at trial that he is entitled to an order in the form or substantially in the form made by Henriques J in paragraph 1 of the Order. He is likely to do so on the ground that such an order is necessary (i) to prevent the risk of jigsaw identification thus frustrating the purpose of the court’s order prohibiting the publication of the information (whether on an interim or final basis); and therefore (ii) to protect his article 8 rights in the private information this action is brought to protect and in his identification as the person concerned - bearing in mind the principles set out in JIH to which I have referred above, and in accordance with the proper approach to such applications where the article 8 rights of the claimant and the article 10 rights of the defendant are engaged, as in my judgment they are here.

I bear in mind that there is no public interest justification currently advanced for the publication of the central story itself; I also bear in mind the concession made by the Claimant as to the details which are not objected to. I have concluded on the facts, there is no sufficient general public interest in publishing the details to which I have referred to justify the seriousness of the interference with the article 8 rights of the Claimant, which would occur if he was identified and if the order made by Henriques J, and now continued by consent and with my approval, is thus undermined.

The need for such an order has been reinforced by the publications which have taken place since the order made by Henriques J. Though Mr Spearman has said the Defendant’s agreement to the terms of the Order I have already made (see paragraph 5 above) was without prejudice to its argument about the ambit of paragraph 1, the publication of the article in my view, has reinforced the need for an order which protects the Claimant against the continuing risk of “jigsaw” identification. In addition, what has occurred inevitably affects what may be said in any public judgment, and the nature of the orders it is now necessary to make which derogate from the principal of open justice.

The threshold of likelihood to which I have referred must be achieved because the grant of the relief which is asked for brings into play section 12 (3) of the Human Rights Act 1998. I have also considered section 12 (4) and specifically, section 12 (4) (a) (ii) – that is the extent to which the material has become available to the public. So far as the latter point is concerned, I do not think the point has been reached where an order made by the court will achieve no purpose. The continued dissemination of the details by the Defendant itself continues and is likely to increase the risk that the Claimant will be identified. The court is not (to adopt Mr Tomlinson’s metaphor) holding back the tide, though this matter may need to be revisited in due course.

In consequence, the Claimant is entitled to an order which ensures his rights are protected to the extent necessary to prevent his identification, and in the manner intended by Henriques J. The Defendant will not therefore be entitled to continue to publish the article in its current form. It will be necessary for me to hear the parties as to the precise terms of the order which should follow from the decision I have reached as recorded in this judgment.