K v News Group Newspapers Ltd

JurisdictionEngland & Wales
JudgeLord Justice Ward,Lord Justice Laws,Lord Justice Moore-Bick
Judgment Date19 April 2011
Neutral Citation[2011] EWCA Civ 439
Docket NumberCase No: A2/11/0569
CourtCourt of Appeal (Civil Division)
Date19 April 2011

[2011] EWCA Civ 439

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

MR JUSTICE COLLINS

HQ11D00848

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Laws

and

Lord Justice Moore-Bick

Case No: A2/11/0569

Between:
ETK
Appellant
and
News Group Newspapers Ltd
Respondent

Mr Hugh Tomlinson QC (instructed by Schillings Solicitors) for the appellant

Mr Anthony Hudson (instructed by Farrer & Co) for the respondent

Hearing date: 10th March 2011

Lord Justice Ward
1

On Saturday 5th March 2011 the applicant made an application on short notice to Collins J. to restrain News Group Newspapers Ltd, the publishers of the News of the World, from publishing or communicating or disclosing to any other person:

"(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)."

2

Having heard the matter in private, Collins J. dismissed the application, refused permission to appeal but granted temporary relief in the terms set out above on the applicant's undertaking expeditiously to apply for permission to appeal. That was done, Sedley L.J. adjourning the application to be heard by two Lord Justices on notice to the respondent. Given the urgency, I directed that the full court should sit on Thursday 11th March to be able to hear the appeal if permission were granted and the parties were content for the appeal to follow.

3

The case was listed to be heard in private. When it was called, Mr David Price Q.C. intervened on behalf of that well known figure, Mr Benjamin Pell, who is regularly seen in the press benches of these courts reporting especially on matters in this field in which he has become quite an expert, to the extent even of his occasionally prompting learned counsel with references to relevant authority of which counsel was ignorant. Mr Price sought to persuade us to hear the matter in open court but we ruled that since the main argument would be fact-sensitive, it was necessary for the preservation of confidentiality to sit in private.

4

We granted permission to appeal, heard the appeal, and although we indicated the result, we formally adjourned in order to hand down this judgment in open court.

The background

5

In about November 2009 the appellant, who is a married man, began a sexual relationship with another woman whom I shall simply call "X", who is herself married. The source of the News of the World's information suggests that this relationship became obvious to those with whom the appellant and X were working. Towards the end of April 2010 the appellant's wife confronted him with her belief, formed either intuitively, or from information conveyed to her, that he was having an affair. He admitted it. This was deeply distressing for the wife but she and her husband determined, not least for the sake of their two teenage children, to rebuild her trust and their marriage. To that end the appellant accepted that he would end his sexual relationship with X and he so informed her.

6

Continuing their working relationship was obviously awkward and in discussion with his employers, the appellant told them that he would prefer in an ideal world not to have to see her at all and that one or other should leave but both accepted that their working commitments did not then make that possible. They agreed to conduct themselves with due decorum and to continue to perform their duties in a professional way as in fact they did.

7

In December 2010 their employers informed X that her services would no longer be required, explaining publicly that it was a convenient moment to make this change. She was, understandably, upset and angry and may even have threatened to take proceedings against the employer. The appellant only became aware of her departure whilst he was on holiday with his family over Christmas.

8

News of these events leaked to the News of the World whose enquiries alerted the appellant to its wish to publish the fact of the affair and that the affair was the real cause of X leaving her employment. He moved accordingly for this injunction, supported not only by his wife, but also by X.

The judgment under appeal

9

Collins J. gave a short ex tempore judgment. He found there was a reasonable expectation of privacy. He conducted a balancing exercise between the right of the newspaper to freedom of expression under Article 10 of the European Convention of Human Rights and the appellant's right to respect for his private and family life under Article 8 and he recognised that by virtue of section 12 of the Human Rights Act 1998 the appellant had to show that it was more likely than not that at trial the balance would come down in favour of Article 8. He held that there was public interest in the effect of the adultery and so refused the injunction because the respondent intended to go no further than reporting the fact of the affair with the resultant dismissal of X. His "last concern" related to the children. As I shall show he held that the adverse effect on them could not tip the balance.

Discussion

10

The principles which govern an application like this for an interim injunction to restrain publicity of private information are by now well established.

(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 [2009] Ch 481 at [36].

The test established in Campbell v MGN Ltd [2004] UKHL 22, [2004] 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 [2008] QB 103 at [61],

"…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) [2005] 1 A.C. 593 at [17]:

"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 [76]:

"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?

11

Collins J. found in the appellant's favour. Mr Anthony Hudson, who appears for the respondent, undertakes to file a respondent's notice to challenge that finding. He submits that the manner in which the appellant and X conducted their relationship was such that it became known to those with whom they worked with the result that knowledge spread in the workplace, reaching to the higher echelons of management. Thus, he submits, the fact of the relationship was "naturally accessible to outsiders". He relies on observations of Eady J. in X v Persons Unknown [2007] E.M.L.R. 10 at [38] distinguishing between "matters which are naturally accessible to outsiders and those which are known only to the protagonists". That was a very different kind of case where the judge was drawing a distinction between a couple whose marriage was encountering difficulties (the "protagonists") and their acquaintances (the "outsiders") who knew of the marital tensions not from private revelation (which would be protected) but from some public manifestation of the discord e.g. an actual separation (which probably would not entitle the protagonists to a reasonable expectation of privacy). Here the sexual...

To continue reading

Request your trial
47 cases
  • Avb v Tdd
    • United Kingdom
    • Queen's Bench Division
    • 12 d1 Maio d1 2014
    ...…" 58 The questions which the court must ask itself can, in large measure, be taken from the summary given by the court in K v News Group Newspapers [2011] EWCA Civ 439; [2011] 1 WLR 1827 at para [10]: "(1) The first stage is to ascertain whether the applicant has a reasonable expectation ......
  • Mr Edward Rocknroll v News Group Newspapers Ltd
    • United Kingdom
    • Chancery Division
    • 17 d4 Janeiro d4 2013
    ...upon which I was addressed at considerable length, the following general statement of the applicable principles by Ward LJ in ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, at paragraph 10, will suffice: "… (1) The first stage is to ascertain whether the applicant has a reasonable exp......
  • XW v XH
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 d2 Abril d2 2019
    ...our attention the summary of the relevant principles recently given by Lord Neuberger, the Master of the Rolls, in this court in JIH v. News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 2 All ER 324, at [21]. My colleagues persuaded me that, by reference to those principles, it was app......
  • Aaa v Associated Newspapers Ltd
    • United Kingdom
    • Queen's Bench Division
    • 25 d3 Julho d3 2012
    ...cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result." 61 In K v Newsgroup Newspapers [2011] 1 WLR 1827 at [19] the Court of Appeal described this as the proper approach in the context of an application for a privacy inj......
  • Request a trial to view additional results
1 books & journal articles
  • Libel: Its Purpose and Reform
    • United Kingdom
    • The Modern Law Review No. 74-6, November 2011
    • 1 d2 Novembro d2 2011
    ...risks.133 The costs of further precautions can include ways in which the127 cf the privacy case ETK vNews Group Newspapers Ltd [2011] EWCA Civ 439 (relevance of effectsof disclosure on other family members in balance between article 8 and article 10).The existing lawon misuse of private inf......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT