Deformation – Breach of confidence – Freedom of expression – Injunctions

LNS v Persons Unknown: QBD (Mr Justice Tugendhat): 29 January 2010

The applicant (X) applied for an injunction prohibiting the publication of certain information by media third parties.

X had sought a prohibition on the publication of information and documents in four categories: (i) the fact of a specified personal relationship between X and another person who was named (Y); (ii) details of that relationship including certain specific consequences of it; (iii) information leading to the identification of X or Y; (iv) any photographs evidencing or relating to the fact or details of those matters. X accepted the truth of certain information which was sought to be protected by the order. There was evidence that the information sought to be protected was already circulating widely by word of mouth, so what X sought in reality was a prohibition of publication to the public at large by broadcast in the press or other media. X had a number of high-profile sponsorship or endorsement deals for companies, including well-known brand names associated with sport, consumer goods and a financial institution. X had been granted an interim injunction substantially in the form sought, including prohibition of reporting even its existence, pending determination of the application one week later. The issues to be determined concerned how the court was to act compatibly with rights under articles 8 and 10 of the European Convention on Human Rights 1950 to give effect to corresponding common law principles relating to open justice, the right to a fair hearing, the right to private life and to reputation, and the right to speak freely. X contended that the injunction ought to be granted on the basis of breach of confidence or misuse of private information.

Held: (1) A breach of confidence occurred where information had the necessary quality of confidence, had been imparted in circumstances importing an obligation of confidence to the claimant and unauthorised use or disclosure was threatened. In the circumstances, X was not likely to establish that there had been a breach of a duty of confidence owed to him, nor was he likely to succeed in defeating a defence that it would be in the public interest for there to be a publication.

(2) At a trial of a claim for misuse of private information, a claimant had to establish that he had a reasonable expectation of privacy in relation to the information of which disclosure was threatened, Murray v Express Newspapers Plc [2008] EWCA Civ 446, [2009] Ch 481 applied. If there was such a reasonable expectation, the next question was whether there was a justification for disclosure, such as public interest or public domain, as set out in articles 8(2) and 10 of the convention, and whether a permanent injunction would be a necessary and proportionate remedy, having regard to article 10. In relation to misuse of private information, there was a conflict between articles 8 and 10 rights, and as neither article had precedence over the other, the court had to carry out a balancing exercise, Re S (A Child) (Identification: Restrictions on Publication), [2004] UKHL 47, [2005] 1 AC 593 applied. In the instant case, while X had shown that a real threat existed to publish information about the fact of the relationship, he was not likely to succeed in establishing that publication of the fact of the relationship should not be allowed.

(3) It was one of the essential features of the protection of private life, and article 8 in particular, that it enabled people to live freely according to their own choices. It was not the case, however, that the conduct of a person in private had to be unlawful before another person could be permitted to criticise it in public. The freedom to live as one chose was one of the most valuable freedoms, but so was the freedom to criticise (within the limits of the law) the conduct of other members of society as being socially harmful or wrong. The nub of X’s application was a desire to protect what was in substance his reputation, in particular having regard to his business with various sponsors. It was likely that whatever words any newspaper published, the editors would choose words that they would contend were capable of being defended in accordance with the law of defamation. Applying the rule in Bonnard v Perryman [1891] 2 Ch 269 CA, as recently reaffirmed in Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462, [2005] QB 972, precluding an injunction unless a defence of justification was bound to fail, it followed that no injunction could be granted, Bonnard and Greene applied. In any event, damages would be an adequate remedy for X. In all the circumstances, it was not appropriate to renew the interim injunction granted. An injunction was not necessary or proportionate having regard to the level of gravity of the interference with X’s private life that would occur in the event that there was a publication of the fact of the relationship, or that X could rely on the interference with the private life of anyone else.

Application refused. Richard Spearman QC (instructed by Schillings) for the applicant; no appearance or representation for the respondent.