“Open Justice 9. Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders, are public: seeArticle 6(1) of the Convention ,CPR 39.2 and Scott v Scott[1913] AC 417 . This applies to applications for interim non-disclosure orders: Micallef v Malta (17056/06)[2009] ECHR 1571 at [75]ff; Ntuli v Donald[2010] EWCA Civ 1276 (Ntuli) at [50]. 10. Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R v Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] Q.B. 227 at 235; Nutuli at [52] – [53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose. 11. The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW[2010] EWHC 2457 (QB) at [34]. 12. There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward[2011] EWCA Civ 409 at [50] – [54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent. 13. The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott[1913] AC 417 at 438 – 439, 463 and 477; Lord Browne of Madingley v Associated Newspapers Ltd[2008] 1 QB 103 at [2] – [3]; Secretary of State for Home Department v AP (No2)[2010] 1 WLR 1652 at [7]; Gray v UVW[2010] EWHC 2367 at [6] – [8]; and JIH v News Group Newspapers[2011] EWCA Civ 42 (JIH) at [21]. 14. When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication ofArticle 8 of the Convention , where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on theirArticle 8 Convention right is entitled. The proper approach is set out in JIH. 15. It will only be in the rarest cases that an interim non-disclosure order containing a prohibition on reporting the fact of proceedings (a super-injunction) will be justified on grounds of strict necessity, i.e., anti-tipping-off situations, where short-term secrecy is required to ensure the applicant can notify the respondent that the order is made: DFT v TFD[2010] EWHC 2335 (DFT) . It is then only in truly exceptional circumstances that such an order should be granted for a longer period: Terry v Persons Unknown [2010] 1 FCR 659 (Terry) at [141].”
“Even if what the Defendant says is true, and I owe her some sort of divorce settlement, I do not understand why this gives her the right to make repeated demands of me in the way that she has, repeatedly copying in people who have no connection with this matter such as my business associates, family members and most recently, various media organisations …”
“… The nature of the question was discussed in Campbell v MGN Ltd. Lord Hope emphasised that the reasonable expectation was that of the person who is affected by the publicity. He said, at para 99: “The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.””
“52 Whilst all the circumstances of each case must be considered, Gatley on Libel and Slander, 12th ed (2013) para 22.5 suggests that there are certain types of information which will normally, but not invariably, be regarded as giving rise to a reasonable expectation of privacy so as to be characterised as being private in character. These are the state of a person’s physical or mental health or condition; a person’s physical characteristics (nudity); a person’s racial or ethnic characteristics; a person’s emotional state (in particular in the context of distress, injury or bereavement); the generality of personal and family relationships; a person’s sexual orientation; the intimate details of personal relationships; information conveyed in the course of personal relationships; a person’s political opinions and affiliations; a person’s religious commitment; personal financial and tax related information; personal communications and correspondence; matters pertaining to the home; past involvement in criminal behaviour; involvement in civil litigation concerning private affairs; and involvement in crime as a victim or a witness.”
“It is important always to remember that the modern law of privacy is not concerned solely with information or ‘secrets': it is also concerned importantly with intrusion. … [That] also largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant: see eg McKennitt v Ash[2008] QB 73 at 80 and 87.”
“(1) THE PROPER APPROACH TO THIS APPLICATION 29. This is an application for an interim injunction. Accordingly, the court is required to apply the well-known principles in American Cyanamid v. Ethicon [1975] A.C. 396. Privacy and confidentiality cases necessarily involve a balance between the applicant’s article 8 right to respect for his or her private and family life, home and correspondence; and the respondent’s article 10 right to freedom of expression. Such cases re quire an “intense focus” on the comparative importance of the competing rights. Further, it is not sufficient in these cases for the applicant merely to show that there is a serious issue to be tried.Section 12(3) of the Human Rights Act 1998 provides: “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” 30. In Cream Holdings Ltd v. Banerjee[2004] UKHL 44 , [2005] 1 A.C. 253, Lord Nicholls of Birkenhead cautioned against reading s.12(3) so strictly that it precludes the court from granting short-term interim relief until the court is able to give the matter fuller consideration. As Lord Nicholls observed, at [18], “confidentiality, once breached, is lost for ever.”
“Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy s.12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of s.12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.” (2) PUBLICATION SHOULD NOT BE ALLOWED Public interest 31. There is no general public interest in other people’s sex lives. In PJS v. News Group Newspapers[2016] UKSC 26 , [2016] A.C. 1081, Lord Mance said, at [32]: “Every case must be considered on its particular facts. But the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made - especially if it occurs in a different medium ...” 32. Indeed, Mr J would have a reasonable expectation of privacy in respect of the details of his affair with Ms O. Here, it is noteworthy that Ms O has not claimed some public interest in disclosing the details of their relationship. Their story does not, at least on his account, involve any criminal offences or especially reprehensible behaviour. Nor does it involve, for example, a relationship between a chief executive or senior public official with a subordinate employee in the same organisation where it might be said that the relationship was by its very nature an abuse of power.”
“Blackmail 40. Blackmail is a criminal offence contrary tos.21(1) of the Theft Act 1968 : “A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; … a demand with menaces is unwarranted unless the person making it does so in the belief – (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand.” 41. The “menaces” in a privacy or confidentiality case are likely to be threats of publication. Here, Mr J says that the allegation that he infected Ms O is untrue. Blackmail can, however, be committed and the court may still restrain publication even where the underlying information at the core of the threat of publication is true. As Warby J observed in LJY, at [40], much blackmail gains its persuasive power from the fact that the allegation is true. 42. The presence of blackmail will be an important matter in determining applications for injunctive relief. In LJY, Warby J said, at [29]: “Generally, the court has taken the view that blackmail represents a misuse of free speech rights. Such conduct will considerably reduce the weight attached to free speech, and correspondingly increase the weight of the arguments in favour of restraint. The court recognises the need to ensure that it does not encourage or help blackmailers, or deter victims of blackmail from seeking justice before the court. All these points are well-recognised … It can properly be said that the grant of a privacy injunction to block a blackmail serves the additional legitimate aim of preventing crime.” “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” “Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy s.12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of s.12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”
“Every case must be considered on its particular facts. But the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made - especially if it occurs in a different medium ...”
“40. I add that if there was a trial, I would expect the Court to find for the claimant, even if it were not persuaded that the allegation was false. Truth is not a defence to a charge of blackmail. Indeed, much blackmail gains its persuasive power from the fact that the allegation is true. Nor is truth a defence to harassment. Depending on the circumstances, it may or may not be relevant to the existence of one of the statutory defences under s 1(3) of the PHA: see the discussion in Hourani v Thomson[2017] EWHC 432 (QB) [187]-[188]. But the defence under s 1(3)(a) of the PHA could not be argued here; there is no question of publication serving the purpose of preventing or detecting crime. On present information, it seems unlikely that a Court would be persuaded that the truth of the allegation, if established, would be enough to satisfy s 1(3)(c) and justify the defendants in carrying out their blackmail threat. The considerations already canvassed at [29] above are persuasive in the context of harassment, as they are in misuse of private information.”