APPENDICES
¶3.121 In another privacy case, Sharp J took into account the defendant's motives when balancing
the claimant's Article 8 and the defendant's Article 10 rights when she observed in DFT v TFD that disclosure of the information in that case (whether to the media or generally) would be the fulfilment of a blackmail threat and that the expression rights of blackmailers are extremely weak, if they are engaged at all.249
¶3.122 It is unsurprising that the court will seek to inquire into the motives of the discloser, as this will likely go to the assessment of the strength and integrity of the argument of public interest.
¶Rights of another person to tell their story 3.123 In McKennitt v Ash, the defendant, Ms Ash, an author and close friend of Ms McKennitt,
sought to resist the order for injunctive relief on the basis that her book was simply an expression of her relationship with the claimant and the role she played in her life and it was therefore argued that it was her right to tell her own story. In rejecting this argument Eady J held, having regard to the decision in Von Hannover, that if a person wishes to reveal information about aspects of his or her relations with other people, which would attract the prima facie protection of privacy rights, any such revelation should be crafted, so far as possible, to protect the other person's privacy. He emphasised that it does not follow, because one can reveal one's private life, that one can also expose confidential matters in respect of which others are entitled to protection if their consent is not forthcoming.250
¶Pre-notification requirement 3.124 Prior notification of publication can properly be described as good practice but is not a
legal requirement. The law does not require advance notice of publication to be given to the subject of an article and a challenge to this before the ECtHR pursued by Max Mosley was unsuccessful. The Court noted that Article 10 does not prohibit the imposition of prior restraint on publication, any such restrains call for the most careful scrutiny although prior restraint may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.251 However, the ECtHR held that Article 8 does not require a legal duty to be imposed on the press to notify the subject of a publication in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. This conclusion was reached on the basis that there was a risk of a chilling effect on the press, and doubts as to effectiveness of a pre- notification requirement and the wide margin of appreciation in this area.252
¶Remedies for misuse of private information 3.125 There are three potential remedies for the tort of misuse of private information: an injunction, damages and a declaration.
1889¶Appendix 4 | Legal Materials
¶Injunctions 3.126 An injunction may be sought on an interim or final basis. An injunction is often the most
effective remedy for claimants seeking to restrain publication of personal information or pictures.
¶3.127 The Court has recognised that damages may not be an effective remedy in this context. The
¶Court of Appeal in Douglas & Ors v Hello Ltd. & Ors held that:253
"The award of damages eventually made to the Douglases, although unassailable in principle, was not at a level which, when measured against the effect of refusing them an interlocutory injunction, can fairly be characterised as adequate or satisfactory. Only by the grant of an interlocutory injunction could the Douglases' rights have been satisfactorily protected. Further, the interests of Hello! at the interlocutory stage, which were essentially only financial, could have been protected by an appropriate undertaking in damages by the Douglases".
¶3.128 In Mosley v News Group Newspapers Ltd Eady J observed that:254
"whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication".
¶3.129 When an injunction is sought on an interim basis, the court will carefully scrutinise the basis
for seeking to restrain publication. The burden for the applicant of establishing the need for restraining pre-publication is a heavy one. The court will consider, applying s12 of the HRA, whether the Claimant is likely to establish at trial that publication is an unlawful interference with their right to privacy and this process will require consideration of the principles set out in detail above.
¶3.130 The courts have repeatedly recognised the need for restraint in interfering with publication and the need for such interference to be justified.255
¶3.131 If a party proceeds to trial and is successful in establishing a cause of action in respect of the
future publication or disclosure of information, the court may grant an injunction. Where a claimant has established his claim for misuse of private information at trial then, unless the grant of an injunction would be an exercise in futility because, for example, the private information is so widely in the public domain that there would be no point in restraining publication of it, he or she is very likely obtain an injunction restraining a defendant from further misuse.
¶3.132 In this area of the law that have recently been concerns regarding a number of procedural
aspects of injunction, in particular the anonymity of claimants and publication of the mere fact of an injunction having been granted being prohibited, commonly referred to as a super injunction.
¶3.133 As a general principle, the names of parties to an action are included in the orders and
1890judgments of the court. This is a corollary of the general rule that hearings are carried out in and judgments and orders are public and there is no general exception where cases concern