“14. The injunction was granted on Saturday preventing publication in the Daily Star Sunday on12 February 2012 . As I elaborate further below, Sunday titles are in a particularly invidious position if an injunction granted at the weekend is overturned at a further hearing later in the week. This is because the prohibition is removed during the working week and it is all daily titles that have the opportunity to report. The Sunday paper loses its exclusive. I make this point because I cannot stress enough that the Daily Star Sunday and Express Newspapers are contesting this injunction on an important point of principle and in support of the right of freedom of expression and not for any commercial reason. In fact, there is every commercial incentive not to spend money on legal fees where even success brings no direct benefit to the paper.” “15. The resulting injunction has already cost a considerable sum in wasted hours and delayed production. The granting of the injunction on Saturday 11 February, after a long hearing in front of HHJ Lindblom which concluded at about 7.30 pm, meant that the Daily Star Sunday were unable to be the first paper to run this exclusive. The late-running hearing meant that pages were sent later to the printers than intended, with the knock-on effect of delayed delivery trucks and late papers in the shops. 16. Exclusive stories are the very lifeblood of the Sunday press. The commercial imperative of the exclusive should not be underestimated at a time Britain’s newspapers are fighting for their very survival. One only has to listen to the evidence that has been given to the Leveson Inquiry as regarding falling circulation and commercial pressures on the print media. 17. Should the injunction be discharged on Thursday 16 February, every daily newspaper will be free to run the story. They will have the facts freely to hand, courtesy of being put on notice by the injunction. This will inevitably always happen in the case of a Sunday paper, unless a Court can be persuaded to hold a return date on a Saturday afternoon – which is, I assume, unrealistic. Even lifting an injunction on a Friday, means that the Saturday papers can report on a story, a large part of the value of which typically will be the exclusive aspect. I must emphasize that this is certainly not the overriding aspect in this case. The overriding aspect is, as I have said, the public interest in publishing a story that I, and my staff, feel strongly the public have an interest and right to know. However, I feel it is important to explain to the court that there is actually very little commercial incentive to defend this injunction for these reasons. 18. The easiest and cheapest solution for the paper in this case is to accept the interim injunction and walk away irrespective of our views. We are here because we believe this sets an important and wrong precedent and the injunction should be overturned. This case involves serious issues that matter to the public and not trivia. I personally believe to injunct information of this character is a serious fetter on the press’s right of freedom of expression and its function as a watchdog. 19. The net result of this is that our exclusive is now no longer our exclusive, however, we are determined to pursue the matter as we think it vitally important the story be told.”
“5. I understand that Mark Spelman claims in his witness statement that he believes the intention of the Daily Star Sunday is to attack his wife, a Cabinet minister, using their son as weapon and that our purpose is “nakedly political”
“20. The Court should not be misled into thinking that publication will or is likely to lead to a press pack descending upon the Claimant or disruption of his studies by numerous journalists door-stepping him at school. This is to wrongly present the press in cartoonish terms and is not grounded in reality. There may be some press interest in the story following any publication, …. 21. Jonathan Spelman’s story will not cause sustained or unreasonable press interest in him personally. This is essentially a news story about the particular facts of his case rather than something likely to generate ongoing media interest in him as an individual. It is unrealistic to think that Jonathan Spelman needs to fear the worst excesses of harassment alleged by some celebrities at the Leveson Inquiry if the facts were made public. While the debate … is likely to rage for years to come, Jonathan Spelman’s case is just the latest chapter in this story. He is of no interest to the press beyond the limits of this particular story and there is no reason for him to fear sustained intrusion into his school and personal life. 22. The PCC has a very effective pre-warning system, to which we as a newspaper still adhere, whereby those subject to unwelcome press attention can put out a warning to all media at the outset to the effect that they do not wish to be photographed or make any comment. This has the effect of a warning shot and most responsible members of the press will respect the warning. In practical terms, this means that national newspapers are unlikely to disobey a PCC warning. This should allay the fears of Jonathan’s parents, who are used to dealing with the press in any event. 23. Finally, it is worth noting that Jonathan Spelman has accompanied his mother on various political outings and campaigns and will not be as unused to the press as others may be.”
"35. … The first question is whether there is a reasonable expectation of privacy. This is of course an objective question. 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 [99]: "
"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."
“3.*Privacy i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information. 6* Children i) Young people should be free to complete their time at school without unnecessary intrusion. vi) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life. * The public interest There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest. 1. The public interest includes, but is not confined to: i) Detecting or exposing crime or serious impropriety. ii) Protecting public health and safety. iii) Preventing the public from being misled by an action or statement of an individual or organisation. 2. There is a public interest in freedom of expression itself….”
“12. The Daily Star Sunday, and Express Newspapers, is not now a member of the Press Complaints Commission. However, the Daily Star Sunday strictly adheres to the Editor’s Code of Practice and we take our responsibilities to our readers and subjects of our stories very seriously. All journalists comply with the Code and our legal advisors advise us as to compliance. 13. Our commitment to abide by the Code is clear in this case, where we have followed the Code in all matters from the very start. Our actions have included giving full, prior notification of the story . This is not a case where we elected to run a story without prior notification; we acted properly and responsibly as explained in Tom Savage’s witness statement.”
“The "media," to use a term which comprises not only the newspapers, but also television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propagating the view of minorities, they perform an invaluable function.”
“Unidentified persons tapped telephone conversation made to and from the plaintiffs' home. The eavesdropper offered for sale to a national newspaper tapes of the telephone conversations which it was alleged revealed breaches of the rules of racing by the first plaintiff, a well-known jockey. The plaintiffs became aware of the existence of the tapes when two journalists employed by the newspaper approached the first plaintiff to confirm the authenticity of the tapes. Thereupon the plaintiffs issued a writ against the newspaper, its editor and the two journalists claiming, inter alia, damages for breach of confidence…. On appeal by the defendants: Held,… (2) That, since the questions of what use might be made of tape recordings which had been obtained by illegal telephone tapping and whether there was an action against the defendants for breach of confidentiality and, if so, whether the defendants would have a defence of disclosure in the public interest would be in issue at trial, publication of the contents of the tapes pending trial would prejudice the plaintiffs' claim; that to preserve the rights of the parties the injunction restraining publication should be continued until trial but that its terms should be varied so that it would be open to the defendants to apply to the appropriate minister for permission to disclose all the information obtained to the police or the Jockey Club…”
"The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures..."
“6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.”
“90. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover,cited above, § 60; …. The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (…), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25,22 February 2007 [“an issue of general interest, namely society's attitude towards a sports star”]; …).”
“79. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”…. 80. This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large…”
“[45] … The fact that he is a child is in our view of greater significance than the judge thought. The courts have recognised the importance of the rights of children in many different contexts and so too has the international community: see eg R v Central Independent Television Plc[1994] Fam 194 per Hoffmann LJ at 204-5 and the United Nations Convention on the Rights of the Child, to which the United Kingdom is a party. More specifically, clause 6 of the Press Complaints Commission Editors' Code of Practice contains this sentence under the heading Children… If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent. In our opinion it is at least arguable that a child of 'ordinary' parents could reasonably expect that the press would not target him and publish photographs of him.”
“21 … section 39(1) is not engaged in the present case. My reason for referring to it is, however, the reflection that, in regard to children not concerned in a criminal trial, there has been a legislative choice not to extend the right to restrain publicity to them. This is a factor which cannot be ignored…. 26. While article 8.1 is engaged, and none of the factors in article 8.2 justifies the interference, it is necessary to assess realistically the nature of the relief sought. This is an application for an injunction beyond the scope of section 39, the remedy provided by Parliament to protect juveniles directly affected by criminal proceedings. No such injunction has in the past been granted under the inherent jurisdiction or under the provisions of the ECHR. There is no decision of the Strasbourg court granting injunctive relief to non-parties, juvenile or adult, in respect of publication of criminal proceedings. Moreover, the Convention on the Rights of the Child, which entered into force on2 September 1990 , protects the privacy of children directly involved in criminal proceedings, but does not protect the privacy of children if they are only indirectly affected by criminal trials: articles 17 and 40.2(vii); see also Geraldine Van Bueren, The International Law on the Rights of the Child, 1994, 141 and 182. The verdict of experience appears to be that such a development is a step too far. 27. The interference with article 8 rights, however distressing for the child, is not of the same order when compared with cases of juveniles, who are directly involved in criminal trials.”
“I recognise that without reference to the content of the confidential information this conclusion is necessarily enigmatic to those who have not read the private judgments of the courts below. But if I were to elaborate I would at once destroy the confidentiality the Cream group are seeking to preserve. Even if the House discharges the restraint order made by the judge, it would not be right for your Lordships to make public the information in question. The contents of your Lordships' speeches should not pre-empt Echo's publication, if that is what the newspaper decides now to do. Nor should these speeches, by themselves placing this information in the public domain, undermine any remedy in damages the Cream group may ultimately be found to have against the Echo or Ms Banerjee in respect of matters the Echo may decide to publish.”
“The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court’s analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In [Armonas v. Lithuania - 36919/02[2008] ECHR 1526 ; [2009] EMLR 7], a complaint about the disclosure of the applicant’s husband’s HIV-positive status focused on the “derisory sum” of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance.”
“That the defendant George Blake be restrained until further order from receiving or from authorising any person to receive on his behalf any payment or other benefit resulting from or in connection with the exploitation of No Other Choice in any form or any information therein relating to security and intelligence which is or has been in his possession by virtue of his position as a member of the Secret Intelligence Service.”