COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE MOORE-BICK
|- and -
|News Group Newspapers Ltd
Mr Anthony Hudson (instructed by Farrer & Co) for the respondent
Hearing date: 10th March 2011
Crown Copyright ©
Lord Justice Ward:
"(a) any information concerning the facts of this case and the individuals involved (including, in particular, any information identifying or in any way tending to identify the Applicant as being the person who has applied for this order), 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 the sexual relationship between the Applicant (who is a male working in the entertainment industry) and the person named in the Confidential Schedule (who is a female working in the entertainment industry)."
The judgment under appeal
(1) The first stage is to ascertain whether the applicant has a reasonable expectation of privacy so as to engage Article 8; if not, the claim fails.
(2) The question of whether or not there is a reasonable expectation of privacy in relation to the information:
" is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher": see Murray v Express Newspapers  Ch 481 at .
The test established in Campbell v MGN Ltd  UKHL 22,  2 AC 457 is to ask whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than the recipient, would find the disclosure offensive.
(3) The protection may be lost if the information is in the public domain. In this regard there is, per Browne v Associated Newspapers Ltd  QB 103 at ,
" potentially an important distinction between information which is made available to a person's circle of friends or work colleagues and information which is widely published in a newspaper."
Whether what may start as information which is private has become information known to the public at large is a matter of fact and degree for determination in each case depending on its specific circumstances.
(4) If Article 8 is engaged then the second stage of the inquiry is to conduct "the ultimate balancing test" which has the four features identified by Lord Steyn in In Re S (A Child) (Identification: Restrictions on Publication)  1 AC 593 at :
"First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each." (It should be noted that the emphasis was added by Lord Steyn.)
(5) As Von Hannover v Germany (2004) 40 EHRR 1 makes clear at :
"the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest."
(6) Pursuant to section 12(3) of the Human Rights Act 1998 an interim injunction should not be granted unless a court is satisfied that the applicant is likely in the sense of more likely than not to obtain an injunction following a trial.
A reasonable expectation of privacy?
The ultimate balance to be struck between Article 10 and Article 8
"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence "
This restriction can only be justified if it is a proportionate and is no more than is necessary to promote the legitimate object of the restriction. To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers. We have to enable sales if we want to keep our newspapers. Unduly to fetter their freedom to report as editors judge to be responsible is to undermine the pre-eminence of the deserved place of the press as a powerful pillar of democracy. These considerations require the court to tread warily before granting this kind of injunction.
"8. The first question is whether there is a reasonable expectation of privacy. There was certainly a reasonable hope of privacy shared by the claimant and [X]. The fact that the relationship was adulterous does not mean that privacy was lost. Prima facie the relationship should be protected by Article 8. "
This suggests her rights were taken into account but other passages can be read as limiting his focus to the rights of the appellant alone for he said:
"9. Thus, I have to consider the balancing exercise between the right of the newspaper under Article 10 and the right of the individual under Article 8.
11. The News of the World argues that their rights outweigh those of the Claimant." [I have added the emphasis.]
"13. My last concern relates to the claimant's children. As Mr Tomlinson rightly points out, there is likely to be an adverse effect on them if the News of the World discloses the fact of the adultery. One recognises the concerns that this issue raises but unfortunately if one parent behaves in a way that attracts adverse publicity it will affect the children. This is not something which can tip the balance if there is otherwise no good reason to grant an injunction."
" missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed."
"131. The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken 'of any relevant rules of international law applicable in the relations between the parties' and in particular the rules concerning the international protection of human rights.
135. there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children, their best interests must be paramount."
Support for that proposition can be gathered from several international human rights instruments, not least from the second principle of the United Nations Declaration of the Rights of the Child 1959, from article 3(1) of the Convention of the Rights of the Child 1989 (UNCRC) and from article 24 of the European Union's Charter of Fundamental Rights. For example, article 3(1) of the UNCRC provides:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
"It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed, unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."
However this learning must, with respect, be read and understood in the context in which it is sought to be applied. It is clear that the interests of children do not automatically take precedence over the Convention rights of others. It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.
" it is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy."
The decisive factor
Lord Justice Laws:
Lord Justice Moore-Bick: