Copyright – Newspaper – Article – Breach of privacy – Interlocutory injunction

Rocknroll v News Group Newspapers Ltd: Chancery Division: 17 January 2013

In July 2010, the claimant attended a private fancy dress party to celebrate the 21st birthday of his then wife’s sister at her parents’ private estate. A series of photographs (the photographs) were taken by another guest at the party, J, some of which showed the claimant partially naked. Subsequently J posted the photographs to his Facebook account where they could be viewed by his approximately 1,500 friends, but not by the general public. The claimant and his then wife divorced and the claimant married a well-known actress, K. 

The photographs came to the attention of the defendant news group which sought to publish the photographs, together with a description of their contents, in a national newspaper. The defendant notified the claimant of its intention to do so and stated that it intended to pixillate the part of any published photographs, which showed the lower half of the claimant’s body. The claimant ascertained that J had taken the photographs. It was common ground that the photographs were subsequently removed from J's Facebook account. The claimant obtained an assignment of J’s copyright in the photographs. He subsequently sought an interim injunction pending trial 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.

It fell to be determined: (i) whether the claimant had a reasonable expectation of privacy, so as to engage art 8 of the Convention; and (ii) the proper balance to be struck where a claim for an injunction to restrain a threatened infringement of copyright would adversely affect the defendant’s right of freedom of speech under art 10 of the Convention. The claimant submitted that he had a reasonable expectation of privacy in relation to the photographs and their content; that they would not contribute anything of substance to any debate of general interest in a democratic society; and that 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. The defendant submitted, among other things, that the claimant had consented to the taking of the photographs, had made himself a 'public figure in the social sphere' with an accordingly restricted expectation of privacy and that the claimant had waived any rights to privacy in relation to his life with his former wife by courting and being paid for national publicity in connection with his marriage to her. Consideration was given to section 12(4)(a)(i) of the Human Rights Act 1998. The application would be granted.

(1) It was settled law that art 8 privacy rights were particularly likely to be engaged by a threat to publish photographs. Public figures were entitled to the enjoyment of art 8 rights of privacy on the same basis as anyone else. Section 12(4)(a)(i) of the Act required the court to have particular regard to the extent to which the material in question had, or was about to, become available to the public. The first stage in respect of a claim to restrain by interim injunction a threatened misuse of private information, was to ascertain whether the applicant had a reasonable expectation of privacy so as to engage article 8; if not, the claim failed. It was settled law that the concept of private life extended to aspects relating to personal identity, such as a person’s name, or a person’s picture. Furthermore, private life included a person’s physical and psychological integrity. An interim injunction should not be granted unless a court was satisfied that the applicant was likely to obtain an injunction following a trial (see [5], [11], [17], [28] of the judgment).

Looking at the matter as a whole, the claimant was more likely than not to succeed at trial in vindicating his art 8 rights as against the defendant’s art 10 rights. On the facts, the claimant’s art 8 rights were plainly engaged by the defendant’s threat both to publish the photographs and to publish a description of their content. Applying settled principles to the instant case, it was very unlikely that the defendant would be able to establish at trial that no useful purpose would be achieved by a restraint on publication of the photographs or their contents, or that there was no longer anything by way of privacy left to be protected. It was unlikely that, at trial, the defendant would establish that in consenting to the taking of the photographs, the claimant had intended to consent to their publication in a national newspaper. The claimant was not in that narrow category of persons who, although engaged in no public office, might be regarded as having reduced expectations of privacy due to their important role in national affairs, such as the chairmen of major public companies, and the captains of national sporting teams.

The evidence fell far short of any general case that the claimant had enjoyed, let alone courted, publicity as a prominent member of the 'social sphere', as identified in authority. Further, the consequences of publication, in terms of risk of harm and distress to K’s children, were matters tending towards a conclusion that the claimant’s privacy should prevail in the instant case (see [12], [13], [15], [16], [25],[26], [39], [40] of the judgment). Green Corns Ltd v Claverley Group Ltd [2005] All ER (D) 269 (May) applied; McKennitt v Ash [2006] All ER (D) 02 (Feb) applied; ETK v News Group Newspapers Ltd [2011] All ER (D) 197 (Apr) applied; A-G v Observer Ltd, A-G v Times Newspapers Ltd [1990] 1 AC 109 considered; Craxi v Italy (Application no 25337/94) [2003] ECHR 25337/94 considered; Von Hannover v Germany (Application 59320/00) 40 EHRR 1 considered.

(2) It was in theory possible that the propensity of an injunction restraining a threatened breach of copyright to impinge upon a defendant’s art 10 right to freedom of expression might occasionally incline the court, on particular facts, to decline the discretionary remedy of an injunction, and leave the claimant to a claim in damages. The claim in copyright would merely prohibit the actual copying of photographs, rather than the publication of a description in words of their content. In those circumstances an injunction merely to restrain copying of photographs would constitute no disproportionate fetter upon the defendant’s art 10 rights, which could sufficiently, albeit not fully, be vindicated by a description of their contents. The statutory requirement in an art 10 context for an applicant for interim relief to demonstrate a probability of success at trial was nonetheless as applicable to a claim in copyright as it was to a claim to restrain misuse of private information (see [43], [44] of the judgment).

Applying that test, on the evidence as it stood, the claimant had a much better than even chance of obtaining an injunction to restrain the breach of copyright inherent in the threatened publication of the photographs as such (see [44] of the judgment). The defendant would be restrained until trial of the matter, or further order, from publishing or copying the photographs and from publishing or otherwise communicating a description of their contents (see [45] of the judgment). Appleby v United Kingdom (Application 44306/98) [2003] All ER (D) 39 (May) considered.

David Sherborne (instructed by Schillings) for the claimant; Gavin Millar QC and Desmond Browne QC (instructed by Simons Muirhead & Burton) for the defendant.