Public interest - Interim injunctions - Human rights

ETK v News Group Newspapers Ltd: CA (Civ Div) (Lord Justices Ward, Laws, Moore-Bick): 19 April 2011

The appellant (K) appealed against the refusal of his application for an interim injunction against the respondent newspaper (N). N cross-appealed against the decision that K’s rights under article 8 of the European Convention on Human Rights 1950 were engaged.

K, who was a married man working in the entertainment industry, began a sexual relationship with a colleague (X).

The relationship became obvious to those working with them and K's wife found out.

K ended the relationship with X. The employers subsequently informed X that her services were no longer required.

News of those events were leaked to N and K was alerted to N's wish to publish the fact of the affair and that the affair was the real cause of X leaving her employment.

K applied for an injunction preventing publication of the article.

The judge held that K's rights under article 8 were engaged but that there was public interest in the effect of the adultery and he refused the injunction because N intended to go no further than reporting the fact of the affair with the resultant dismissal of X.

He further held that the adverse effect on K's children did not tip the balance in favour of granting an injunction.

Held: (1) The judge was right to hold that K's rights under article 8 were engaged. The sexual relationship was essentially a private matter and the knowledge of their work colleagues did not put the information into the public domain, Browne v Associated Newspapers Ltd (2007) EWCA Civ 295, (2008) QB 103 and X v Persons Unknown (2006) EWHC 2783 (QB), (2007) EMLR 10 considered.

K was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observations or from gossip (see paragraphs 11-12 of judgment).

(2) A balance had to be struck between K's rights under article 8 and N's rights under article 10. Any restriction on N, under article 10(2), could only be justified if proportionate.

Weight had to be given not only to K's article 8 rights but also to those of his wife, children and X; both X and K's wife opposed the publicity. The judge had erred in holding that the harmful effect to the children could not tip the balance.

When the court was deciding where the balance lay between article 8 and article 10 rights it should accord particular weight to the rights of children likely to be affected by the publication, Beoku-Betts v Secretary of State for the Home Department (2005) EWCA Civ 828 and S (A Child) (Identification: Restrictions on Publication), Re (2004) UKHL 47, (2005) 1 AC 593 considered.

Where a tangible and objective public interest tended to favour publication the balance may be difficult to strike.

The force of the public interest would be highly material and the interests of affected children could not be treated as overriding.

In the instant case, the benefits to be achieved by publication in the interests of free speech were wholly outweighed by the harm that would be done through the interference with the rights of privacy of all those affected (paragraphs 13-14, 17-20 and 22).

(3) The decisive factor was the contribution the published information would make to a debate of general interest.

While publication may satisfy public prurience that was not a sufficient justification for interfering with the private rights of those involved.

The judge erred in his decision and the case was one where it was more likely than not that an injunction would be granted following a trial (paragraphs 23-24).

Appeal allowed, cross-appeal dismissed.

Hugh Tomlinson QC (instructed by Schillings) for the appellant; Anthony Hudson (instructed by Farrer & Co) for the respondent.