Mr Edward Rocknroll v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 24 (Ch) |
| Date | 17 January 2013 |
| Court | Chancery Division |
[2013] EWHC 24 (Ch)
Mr Justice Briggs
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Sherborne (instructed by Schillings) for the Claimant
Mr Gavin Millar QC, Mr Desmond BrowneQC (instructed by Simons Muirhead & Burton) for the Defendant
Approved Judgment
Hearing dates: 3, 7, 8 January 2013
Introduction
In July 2010 the claimant Edward RocknRoll attended a private fancy dress party to celebrate the 21 st birthday of his then wife's sister at her parents' private estate in West Sussex. A series of photographs ("the Photographs") were taken by another guest at the party, a Mr James Pope, some of which show the claimant partially naked. Subsequently Mr Pope posted the Photographs to his Facebook account where, until (he says) recent changes in his privacy settings, they could be viewed by his approximately 1500 friends, but not by the general public.
The claimant and his then wife have since been divorced. After some months' courtship and engagement, the claimant married the well-known actress Kate Winslet at a private ceremony in New York in December 2012. Although the development of a relationship between the claimant and Miss Winslet had by then become the subject of press comment, the wedding itself became a matter of press publicity only a few days after it had occurred.
The Photographs came to the attention of the defendant News Group Newspapers Limited in or about the beginning of January this year. The defendant wishes to publish the Photographs, together with a description of their contents, in the Sun newspaper, and notified the claimant of its intention to do so, albeit not the source of the Photographs. The defendant stated that it intended to pixillate the part of any published photographs which showed the lower half of the Claimant's body. After urgent research, the claimant ascertained that Mr Pope was the taker of the Photographs and that they came to the defendant's attention due to being posted on his Facebook site, and due (according to Mr Pope) to a subsequent relaxation of the relevant privacy settings.
Having obtained an assignment of Mr Pope's copyright in the Photographs, the claimant now seeks to restrain their publication by the defendant, or the publication of a description of their contents, relying both upon his status as copyright owner by assignment, and upon his rights under Article 8 of the European Human Rights Convention. The claimant's application came before me sitting as vacation judge on 3 January as an opposed application on short notice. I adjourned it for completion of evidence and preparation of legal argument to 7 January, on the basis of an injunction which provided short term protection to the claimant in the meantime, he having come before the court too late on that day to enable me to form any view about whether he would be more likely than not to succeed at trial: see section 12(3) of the Human Rights Act 1998 and Cream Holdings v Banerjee [2005] 1 AC 253, per Lord Nicholls at paragraph 22. The defendant would otherwise have published the Photographs, and a description of their contents, in the Sun newspaper on 4 January, and the interim relief granted was the minimum necessary to avoid the claimant's apparently arguable case for an injunction being rendered useless due to the absence of sufficient court time, and preparation by the parties, on 3 January.
Putting on one side for the moment the claim based on copyright in the Photographs, a claim to restrain by interim injunction a threatened misuse of private information must be determined in accordance with what are relatively new but well-settled principles. Subject to aspects of the detail, 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 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."
(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."
Consistent with recently developing practice, and in accordance with the requirement that litigation be conducted in public so far as is possible, it has through the parties' sensible co-operation been possible for all but a very short part of the hearing of this application to be conducted in public, and for all but a small part of the evidence to be treated similarly. In particular, the claimant has been prepared to disclose from the outset both his identity and the fact that the Photographs show him partially naked, engaged in what he has described as "rather silly, schoolboy-like behaviour".
The confidential evidence (which has nonetheless been disclosed to the defendant) includes, of course, the Photographs themselves, an explanation from the claimant about the circumstances in which he came to behave as depicted in the Photographs, and particulars from Miss Winslet of her concern that the publication of the Photographs, or a description of their contents, will cause real harm and distress to her two children.
I have set out in a confidential appendix to this judgment a brief description of the Photographs, the content of the confidential evidence, and the limited parts of my reasons for the conclusion which I have reached on this application which cannot be set out in public without undermining the relief which the claimant seeks. I made it clear to the parties at the end of the hearing of the application, on 8 th January, that I had decided that an injunction broadly as sought should be granted to the claimant pending trial, and that my reasons for that decision would be given in a reserved judgment as soon as possible thereafter. This I now do.
The claimant's case may be summarised very briefly indeed, even though Mr Sherborne's skeleton argument occupied some 44 pages (of which I make no complaint). It is that:
(1) The claimant had a reasonable expectation of privacy in relation to the Photographs and their content since they were taken, albeit with his consent, at a private party on private premises and showed him behaving in a manner which a reasonable person of ordinary sensibilities, placed in the same situation, would consider it offensive to have disclosed to the general public in a national newspaper.
(2) Neither the Photographs nor their contents would, if published, contribute anything of substance to any debate of general interest in a democratic society in the sense explained in Von Hannover v Germany [2005] 40 EHRR 1.
(3) Publication of the Photographs, or of their content, would risk causing real harm and distress, both to him, to his new wife and to her children of whom he is now the step-father and whose day to day care he shares with Miss Winslet.
The defendant challenges every aspect of that case. Mr Desmond Browne QC submitted, in summary:
(1) The claimant has both before and by reason of becoming married to Miss Winslet made himself a "public figure in the social sphere" with an accordingly...
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