By Amber Melville-Brown, David Price Solicitors & Advocates, London


0 Playing Canute - when an injunction no longer serves any purpose

The defendant in a defamation case is entitled to 'publish and be damned' - to publish now, but be damned by damages at trial where he is found to have defamed the claimant.



Pre-publication injunctions are rare. But in an action in breach of confidence or privacy/misuse of private information, the pre-publication injunction is often the primary remedy sought. After all, what is the good of damages when one's private secrets or private parts have been splashed across the media for all to see?



The courts are prepared to maintain the pre-publication status quo, accepting that, once the confidential genie is out of the bottle, it is extremely hard to stuff him back in. Or to put it in the words of the then Master of the Rolls in the Spycatcher case (AG v Guardian Newspapers 1987): 'Confidential information is like an ice cube... give it to the party who has no refrigerator or will not agree to keep it in one, and by the time of the trial you have just a pool of water.'



By the time Max Mosley got to court, News Group Newspapers (NGN) and countless others had left the fridge door so widely open that the confidential material had leaked into households worldwide; to be precise, there had been 435,000 hits on the online version of the article of complaint, with the video footage viewed approximately 1,423,000 times.



Mr Mosley, president of the governing body of motor sport worldwide, the Federation Internationale de l'Automobile, was filmed by a secret camera engaged in sexual activity with five prostitutes in the basement of a private flat. An article was published on 30 March 2008 on the News of the World website together with the filmed footage, edited to hide the women's faces and any sexual parts. A complaint from Mr Mosley's solicitors was made immediately and, the following day, NGN voluntarily removed the material, undertaking not to republish it without first giving 24 hours' notice. However, on 3 April, such notice was given and an application was made on 4 April for an injunction to prevent any further publication.



Mr Mosley did not challenge that the events took place but argued that their publication infringed his right to privacy. He did challenge the characterisation of the events as Nazi role-play - the headline read: 'F1 boss has sick Nazi orgy with 5 hookers'. As explained by Mr Justice Eady: 'It is clear that Mr Mosley's complaint has at least two distinct elements. First, he objects to the visual portrayal of the edited footage showing his sexual activities. Secondly, he says that the episode had nothing to do with Nazism. The suggestion was made in the newspaper that he was playing 'Nazi sex games'; that he was playing a concentration camp commandant; and that the women wore 'uniforms' reminiscent of Auschwitz guards.' All this has an extra resonance because Mr Mosley is the son of Sir Oswald Mosley, founder of the British Union of Fascists. This is linked to allegations by the newspaper of hypocrisy: 'In public he rejects his father's evil past, but secretly he plays Nazi sex games.'



The claimed injunction would not be granted in defamation, but was an available interim remedy in privacy. Eady J had to be satisfied 'that the claimant would be likely to obtain similar relief on a permanent basis at trial', 'likely' in these circumstances meaning that the claimant has a greater-than-50% chance of the same.





Pre-publication principles

Eady J reminded himself of the principles to be borne in mind where a pre-publication injunction is sought:



- No convention right has precedence over another;

- Where a conflict arises between rights guaranteed by articles 8 and 10, 'an intense focus' is required on the comparative importance of the specific rights in the individual case;

- The court must take into account the justification for interfering with or restricting each right; and

- The proportionality test must be applied to each.



The judge easily found that the claimant's article 8 rights came into conflict with the defendant's article 10 rights. The question was, however, 'whether in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication'.



So, if Mr Mosley's article 8 rights were engaged, were there any 'limiting factors' to justify publication? Was there, for example, a 'public interest in revealing the material which is powerful enough to override Mr Mosley's prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs'? The judge said he had 'little difficulty in answering the question in the negative'. The only reason the photos and footage were of interest was because they were 'mildly salacious' and provided an opportunity 'to have a snigger' at the participants' expense. He referred to a hypothetical example given by Lord Hoffman in Campbell (Campbell v MGN Ltd [2004] 1 AC 457, 475 at 60) in which Hoffman LJ had suggested that the disclosure of the fact of a sexual relationship because of corrupt favours might be justified by a legitimate public interest, but that the publication of photographs to evidence the relationship might not. Eady J found here that there was 'no legitimate element of public interest which would be served by the additional disclosure of the edited footage'.





Holding back the tide

He went on to consider another limiting factor - whether the information 'has lost its privacy to the extent that there is nothing left for the law to protect'.



This, he admitted, he had found 'more difficult', including the question posed rhetorically by Mr Millar for the defendants, as to what could be achieved by an injunction in circumstances where the material had already been seen by thousands of people around the world. Should anyone wish to see it, he was told, they need only search the internet where it could still be accessed notwithstanding any order of the court against NGN.



'The court should guard against slipping into playing the role of King Canute,' said Eady J. He reluctantly concluded that, on the evidence before him, 'the material is so widely accessible that an order in the terms sought would make very little practical difference'. Mr Mosley no longer had the required reasonable expectation of privacy as regards the material he sought to protect. Although it was intrusive and demeaning, 'the granting of an order against this respondent at the present juncture would merely be a futile gesture'.



Mr Mosley's application shows that the confidential cube must at least retain the semblance of ice if the claimant is going to stand any chance of a successful application to put it back in the fridge. Given the confidential material had seeped across the kitchen floor of thousands of households worldwide, he concluded that it could no longer be described as confidential; 'the dam has effectively burst'.