A recent High Court case confirms that a without notice injunction restraining publication of private information may be obtained where there has already been limited publication, so long as the applicant acts quickly. The case also reiterates that the court will make orders for anonymity where it is “strictly necessary” as an exception to the principle of open justice.

NCL v MME concerned an application for a without notice interim injunction to prevent further publication of a book that the claimant alleged was written by the defendant (under a pseudonym). The claimant contended that the book disclosed a significant amount of private information about her, including the fact that she was the complainant in a sexual offence investigation, something which carries automatic lifelong anonymity under the Sexual Offences (Amendment) Act 1992. The claimant intended to claim a permanent injunction and damages, and the judge granted the interim injunction on the basis that she was more likely than not to succeed in doing so at trial.

 

Background

The claimant had a relationship with the defendant during which she complained to the police that he had committed a sexual offence against her.

The claimant recently became aware that a self-published book was being offered for sale to the public. It detailed the relationship the defendant had with a woman, her allegations that he committed a sexual offence and the subsequent disciplinary proceedings. While it was written under a pseudonym, she claimed it was clear the defendant had written it and that both she and the defendant were identifiable from the details in the book.

The claimant contended that the information in the book was her personal information over which she had a reasonable expectation of privacy. She said publication would be an unjustified interference as the level of intrusion was incompatible with the defendant’s competing right to freedom of expression.

 

Jigsaw identification

The judge accepted that there was strong evidence that the defendant was the author of the book, including attempts made on websites and Facebook to promote the book, which contained photographs of the defendant.

The judge further agreed that the claimant made a strong case that many people would recognise the women in the book as her, as the book contained identifiable details such as her job and her employer both during and after the relationship, as well as her current job. The judge emphasised that the fact of the relationship had not been and was not private, whereas the private details of their relationship were. Therefore, there was likely to be a large number of people who would recognise the defendant as being the subject of the book (particularly as it contained details of the disciplinary details against the defendant, which attracted some publicity). People could, therefore, deduce that the claimant was the woman he referred to.

 

Privacy v freedom of expression

Establishing a claim for misuse of private information relies on a two-stage test: first, that the claimant has a reasonable expectation of privacy in the relevant information. In this case, the judge was satisfied that the information was plainly of a nature in which the claimant had a reasonable expectation of privacy. This expectation was not defeated by the fact that the book had been on sale for a relatively short time. Second, the claimant’s privacy must not be outweighed by competing interests. In this case, the defendant’s right to freedom of expression did not outweigh the reasonable expectation of privacy, since there was no public interest in publication and the content of the book was merely “salacious”. The judge considered that the claimant was more likely than not to succeed at trial and that the invasion of privacy by the book was “serious, extensive and disproportionate to any legitimate purpose” in publishing the book.

 

Anonymity

The judge was content to make an order for anonymity, as an exception to the principle of open justice since it was strictly necessary; naming the claimant would defeat the object of the proceedings and the administration of justice. The judge did, however, decline to hold the hearing in private (although there were no attendees from the press or public at the Skype for Business virtual hearing). The judge also declined to make a “super injunction” (which prevents the publication of the fact of an injunction at all). These further derogations from open justice were not necessary.

 

Without notice injunction

The court will only grant a without notice injunction if there are very good reasons for not informing the defendant, namely “that there is a real prospect that were a respondent or non-party to be notified they would take steps to defeat the order’s purpose”. The judge considered that the claimant had succeeded in establishing a strong case that the defendant was the author of the book, which in itself was “strong evidence that the defendant cannot be trusted not to disclose private information”.

The claimant further contended that there was a real risk that if the defendant was aware of the application, he would bring the private information in the book to the attention of people who know her. The judge also took into account the strong negative feelings the defendant held towards the claimant, noting that the defendant “describes himself… as wanting to cause her harm”.

 

Conclusion

Allowing further publication of the book in this case would likely have led to the identification of the claimant as a complainant in a sexual assault complaint contrary to the 1992 Act, and this was a compelling factor in the judge’s decision. However, absent this fact, the judge may still have allowed the injunction and anonymisation due to the fact that the book detailed private information about the relationship between the parties to no legitimate end. The outcome in NCL v MME might have been different had there been a serious public interest in publication, such as to expose corruption or a miscarriage of justice. However, the judge did not consider this to be the case; the book did no more than re-state the defendant’s case on issues dealt with in disciplinary proceedings.

Another key point to take away is that the judge did not consider the fact that the book had been available for sale for a relatively short amount of time as a factor that defeated the claimant’s reasonable expectation of privacy. This demonstrates that it is not “too late” when publication has occurred. It is critical, however, to act quickly when someone is threatening to publish or has just published private and/or sensitive personal information.

 

This article was co-written by Paralegal Palomi Kotecha

 


 

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