Bulletins Story: PRACTICAL TIPS FOR PRIVACY INJUNCTIONS FROM MR JUSTICE EADY: X & Y v PERSONS UNKNOWN

Date: 14 November 2006

On 5 October Mr Justice Eady granted a “John Doe” injunction against persons unknown to prevent further dissemination of allegations about the claimants’ marriage. Three newspaper groups – Associated Newspapers (“AN”), MGN (“MGN”) and Newsgroup Newspapers (“NGN”) – had been approached by individuals wanting to leak stories about the claimants. Newspapers within those groups had given sufficient clear indications that they were not going to publish to make an injunction against them inappropriate. Fearing however that other individuals might be approached for information, the claimants sought an injunction to restrain publication of private information about the marriage.

Mr Justice Eady had granted the injunction at a private hearing without the newspapers being represented. MGN and NGN subsequently applied to discharge the resulting order on the grounds firstly that there had been material non-disclosure by the claimant, and secondly that the injunction should not have been granted in any event because of material that the claimants had already put in the public domain about their marriage. AN merely sought a variation of the terms of the injunction and a declaration that they should have been notified of the original application. The judgment in these issues is dated 8 November.

The judge refused the application to discharge the injunction on both bases. As to the first he set out a number of reasons why the application based on material non-disclosure had been refused. These included a finding that there had been no intention to mislead the court. The hearing was arranged in a hurry and this “meant that corners were cut”. He also found that such enquiries as had been made indicated that the claimants had not acted in a way which had the effect of waiving their reasonable expectation of privacy, and that there had been some compliance with the duty on the part of the claimant in a without notice application to give “full and frank disclosure” of the facts relevant to the hearing. The judge also stated that if he had known the information which was now before the court, he still would have granted the injunction.

Mr Justice Eady provided this guidance to claimants in without notice applications for privacy injunctions:

“A reasonable test against which to judge non-disclosure may be whether the Applicant has taken all practical steps to reveal material which is reasonably likely to assist the Respondent’s probable defence(s) at trial. That obligation is not to be identified, however, or confused with the need to dredge up everything about the Claimant in the public domain.”

As to the second basis upon which an application was made to discharge the injunction, he concluded that the claimants did have a reasonable expectation of privacy in details of their marital difficulties, and therefore in principle were entitled to protect their rights under Article 8 by means of an injunction. In this case those rights had not been “waived” or compromised by material about the marriage which they had put in the public domain. He recognised that if you are in the public eye, some degree of privacy will inevitably be lost. He also observed that the fact that there were newspaper articles which purported to contain information about the marriage did not mean that those articles were actually factual or accurate, and therefore did not necessarily constitute genuine disclosure into the pubic domain of private marital information.

The application by AN to vary the order to ensure that it was proportionate and did not unduly inhibit their Article 10 rights was granted. The also observed that “with hindsight” it would have been better if AN had been notified of the original application, but accepted that the claimants’ lawyers had opted not to do so because they believed that AN had no continuing interest in the story. This, however, is a clear indication by a very important jury list judge that if a particular media organisation is known to be interested in a story, it should be given (where practical) notice of any application for an injunction.

Mr Justice Eady also made some important observations about the privacy of high profile individuals. He drew a distinction between someone being “in the public eye” and someone being a “publicity seeker”. He made this important statement of principle:

“It by no means follows that an individual who is photographed and described in print about whom information or speculation is published about his or her private life, must have so behaved as to forfeit or waive the entitlement to privacy with regard to (say) intimate personal relationships or the conduct of a private life generally.”

He went on to observe that it depends on how such information came into the public domain, and what spheres of the individual’s private life had and had not emerged into the public domain. The judge’s observations about the Claimant X (a professional model) were particularly instructive. He observed that MGN and NGN had adduced “a significant volume of material in the papers about X”. He went on to say, however:

“I am quite satisfied, in the light of X’s evidence in particular, and the other material before me which I find consistent with it, that X is not a person who willingly sets out for self-promotion to live her private life in the public eye. Yet she is under contractual obligations to those whose products or services she promotes to give interviews from time to time. That is an important part of the context in which the Court has to reach its conclusion."

He also distinguished between the general facts and circumstances of a marital breakdown, and specific and private issues within it:

“The circumstances of a marital breakdown or tension are likely beneath the surface to be individual and specific to the people concerned. They will be generally unknowable by others without revelation of what is in the nature of things private information by one party or the other. Naturally, if there are public rows, or recriminations in the media as sometimes happens, the situation will be rather different..., however the reasons for a breakdown in a relationship can only be protected if they have remained private."

The judge endorsed the solution in this case, which was to attach to the injunction order a confidential schedule containing specific allegations of a private character which there were reasons to suppose had been made public in the absence of protective interlocutory relief.

The judge also made specific reference to the fact that it is common for media defendants to conjure up a huge amount of material about newsworthy people in an attempt to demonstrate that that individual has “forfeited rights to privacy or confidentiality and become to all intents and purposes public property.  It is important not to be beguiled into drawing such a conclusion simply because of bulk”.  He went on to observe that some may merely be “speculation by journalists or purported revelations wrongly attributed to the particular claimant”.

Both claimant and defendant alike would be unwise to ignore these remarks from such an authoritative source, particularly as many of the injunction applications in this area are likely to be before Mr Justice Eady.

Jonathan Coad

Defamation & Privacy

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