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In two recent decisions the High Court has upheld interim injunctions restraining the publication of private information. 1 In each case, the Court ruled that the proceedings should be anonymised to protect the claimant from exposure of his private sexual encounters and to preserve the strong public interest in preventing blackmail.
DFT v TFD
In the first case, Sharp J heard an urgent application for an interim injunction on 9 September 2010. No proceedings had yet been issued, and the application was made without notice to the respondent or to the media.
Sharp J was satisfied at the outset that the hearing on 9 September 2010 (as well as the return date hearing on 16-17 September 2010) should be conducted in private.
The applicant provided evidence on the substance of the application and on his reasons for orders derogating from the principles of open justice and the Civil Procedure Rules (CPRs). This was set out in confidential schedules to the witness statements provided by the applicant, his solicitor and a member of a firm of security consultants engaged by him.
It was alleged that the respondent had been blackmailing (or attempting to blackmail) the applicant, and that she had threatened to publish private information concerning a sexual relationship between them unless she was paid very substantial sums. There was evidence that some of her family might have been involved. Shortly before the application it had been made clear to her that no money would be paid, and it was suspected that she had since been in touch with journalists with a view to fulfilling the blackmail threat. There was no evidence, however, as to the identity of those journalists, or that any media organisation had shown any interest in the information. Sharp J considered that there was cogent evidence before the court supporting the applicant’s case in all these respects.
There was also a real concern that, if the respondent found out about the application, she might avoid service and/or attempt to frustrate any order before she could be served. In the circumstances, Sharp J considered it appropriate for an order to be made without notice either to the respondent or to the media. The judge granted the injunction requested for the seven-day period until the return date. The order provided for the anonymity of the parties, the restriction of access to documents on the court file and for a derogation from CPR 25 PD 9.2, in that the applicant was not required to provide the material provided to the court, or a note of the hearing, to those parties served with the order unless they specifically asked for that material and gave undertakings to protect the use of that material and the information it contained. The order also provided that there should be no report of the existence of the proceedings, which Sharp J considered to be necessary for a short period because of the risk the respondent would be tipped off. This was, therefore, a so-called “super-injunction” 2 , albeit short-lived.
The respondent was served with the order on the day it was made. She submitted a brief witness statement to the court, in which she strongly disputed the allegations made against her, but consented to the continuation of the injunction until trial or further order.
A number of media organisations were also served with copies of the order. Two of them asked for copies of the material supplied to the court on 9 September 2010.
The purpose of the hearing on 16-17 September 2010 was to consider whether the injunction should be continued until trial or further order.
Sharp J was satisfied, on the basis of the evidence, that the applicant was likely to establish at trial that the information he sought to protect was private and/or confidential, and that he was likely to succeed overall at trial. The judge agreed with what was said by Eady J in Mosley v News Group that “anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults”, and that “people’s sex lives are essentially their own business”. 3 In the present case, the information concerned the fact and details of private sexual encounters between the applicant and the respondent at his home, including during the course of a relationship. They had nothing to do with any “public functions” or with the applicant’s profession. The applicant did not hold public office, and the information was known only to a few individuals and was not in the public domain.
In relation to the respondent’s Article 10 rights, Sharp J considered that the evidence before her currently suggested that the applicant would be likely to establish at trial that the disclosure of the information would be the fulfilment of a blackmailing threat. The judge considered that blackmailers’ rights to freedom of expression were extremely weak, if engaged at all.
Sharp J found that the proceedings should continue to be anonymised, noting that, if the applicant were identified by name, there would be a serious risk that the private information which the order was supposed to protect would emerge, and that the purpose of the order would therefore be frustrated. The blackmail element also brought extremely strong public-interest considerations into play.
Sharp J held, however, that it was no longer necessary for the order to prohibit reporting of the fact that an order had been made. The judge considered that the other parts of the order granted at the hearing on 9 September – with the addition of a proviso confining the information that could be released about the case to that contained in the judgment – should be sufficient to protect the applicant’s Article 8 rights effectively and to minimise the risk of “jigsaw identification”.
AMM v HXW
On 21 September 2010 Edwards-Stuart J granted an injunction to restrain the publication of private information, with a return date of 4 October 2010. On 4 October 2010 Tugendhat J continued this injunction, subject to some variations to its provisions. Both judges ordered that the applications should be heard in private, and that the proceedings be anonymised, considering that this was necessary in the interests of justice, since without such anonymity the publicity about each hearing would have defeated the object of the application.
The application for the order of 21 September was not served on any media organisation or any other third party. One provision of Edwards-Stuart J’s order required the respondent to name any journalist to whom she had already disclosed any of the information whose publication was prohibited by the order. As a result, the respondent named certain journalists and, following that, the order of 21 September was served on Associated Newspapers Limited (Associated).
Between the hearings on 21 September and 4 October 2010, Sharp J handed down her judgment in DFT v TFD, and Associated published an article in the Daily Mail on 30 September about the first hearing of AMM v HXW and also about another injunction, apparently the DFT case. The article was entitled “TV celebrity wins court order gagging his ex-wife” and included snippets of information, such as: “The celebrity, who has a huge public profile has obtained an injunction stopping his ex-wife writing about their relationship and claiming that they had a sexual affair after he remarried.”
At the hearing on 4 October 2010, the respondent did not contest the making of a further order or provide any evidence to contradict the applicant’s evidence. Associated did not contest the making of the order either (or, indeed, communicate with the court at all).
Tugendhat J ordered the respondent not to disclose (or to cause anyone else to disclose) any information about the identity of the parties (or liable to lead to the identification of the parties), except for that contained in any public judgment of the court, subject to a number of exceptions. One such exception was to permit republication of any material already in the public domain, or that thereafter came into the public domain as the result of national media publication (except as a result of breach of the order). The judge emphasised that nobody had suggested the information published by Associated breached the order of 21 September, but he considered that the publication of such information limited the options available to the court as to the form of the order to be made.
The judge noted it was correct that the applicant was a married TV star, and that the respondent was his ex-wife. The judge pointed out, however, that while the respondent claimed to have had a sexual affair with the applicant after they remarried, the applicant denied that allegation. Tugendhat J also observed that an allegation of blackmail was made in the first hearing, that the applicant had adduced evidence to support his allegation and that the respondent had not denied demanding money from the applicant.
In relation to blackmail, Tugendhat J held that, to thwart a blackmailer’s threat, the court must choose between refusing an anonymity order (but restricting publication of the information concerned) or granting an anonymity order. Because of the information published in the Daily Mail, the only option open to the court was an anonymity order.
The granting of anonymity orders has been the subject of two 2010 Supreme Court decisions, 4 from which it is clear that the question of whether a judge should grant an anonymity order is not a matter of the judge’s discretion, but a matter of obligation under Article 8 of the European Convention on Human Rights and section 6 of the Human Rights Act 1998. The court is required to weigh up the competing Convention rights.
Tugendhat J considered that the need to have regard to the applicant’s Article 8 rights, and to promote the public interest in preventing and punishing blackmail, were both factors that weighed strongly in favour of granting an anonymity order in this case. The respondent’s Article 10 rights to publish information about her relationship with her ex-husband were not strong and, as an alleged blackmailer, her Article 10 rights were even weaker. The judge granted the injunction and continued the anonymity order.
Practical significance
Judges are scrutinising applications to restrain publication of private and/or confidential information very carefully in light of the recent controversy surrounding super-injunctions, notably in relation to the Trafigura and John Terry cases. Derogations from the principle of open justice and the provisions of the CPR are still being made in such cases. In both the DFT and the AMM case, the applications were heard in private and the proceedings were anonymised until trial or further order.
The proceedings in DFT and AMM might well have been anonymised even without the blackmail element. But it is clear from both judgments that, if a respondent has tried to blackmail an applicant by threatening to publish private information, that will weigh heavily in favour of granting an anonymity order. It will also lessen the respondent’s Article 10 rights to freedom of expression, which, if the respondent is threatening to publish private information about the applicant, may not be particularly strong in any event.
In the DFT case, Sharp J noted that the recent controversy over super-injunctions had led to a practical risk of jigsaw identification or of anonymous publication of an applicant’s identity (for example, on the internet). The judge agreed with Counsel for the applicant that there was concrete evidence that this had happened when super-injunctions had been made in the past.
But taking a common-sense approach, she noted that: “The difficulties posed by the possibility of an anonymous leak can never be eliminated … where an order such as this requires … the identity of the parties and material relied on … to be supplied to third parties. But [this] risk … does not make it necessary to prohibit publication of the fact that this particular order has been made.”
Eleanor Steyn
Article to be published in Entertainment Law Review.
1 DFT v TFD [2010] EWHC 2335 (QB) and AMM v HXW [2010] EWHC 2457 (QB)
2 An injunction that prohibits the reporting of the existence of the proceedings, or that an injunction has been granted.
3 [2008] EWHC 1777 (QB)
4 Guardian News & Media Ltd& Ors Re HM Treasury v Ahmed & Ors [2010] UKSC 1 and Secretary of State for the Home Department v AP (No 2) [2010] UKSC 26
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