ERY v Associated Newspapers Ltd

Factual and Procedural Background

This opinion concerns an application for the continuation of an injunction initially granted by Dove J. on 15 October 2016. The injunction was granted to restrain the Defendant from publishing confidential or private information about the Claimant, a businessman, in relation to a police investigation involving his company, Company A, and another company, Company B.

Earlier in the year, police officers from a force outside London searched the premises of Companies A and B as part of a financial crime investigation. The Claimant was subsequently interviewed under caution by the police. The Claimant contends that information about his interview and the police investigation into his suspected involvement in financial crime is private and confidential, warranting an injunction to prevent its publication by the Defendant, a publisher of several newspapers including the Mail on Sunday.

The Defendant expressed an intention not to publish the fact that the Claimant was interviewed under caution but wished to publish an article about the police investigation of Company A, clarifying that no charges or arrests had been made regarding Company A employees. The Claimant sought a court order to restrain the Defendant from publishing any such information, arguing that the Defendant's refusal to give an undertaking not to publish the interview information justified the injunction.

The injunction was initially granted on a holding basis by Dove J. after a brief hearing, with the Claimant's legal representatives emphasizing the need to protect privacy rights under Article 8 of the European Convention on Human Rights (ECHR). The Defendant did not oppose the temporary continuation of the injunction pending a full hearing.

Legal Issues Presented

1. Whether the Claimant has a reasonable expectation of privacy in the information concerning the police investigation and his interview under caution.
2. Whether the Defendant’s freedom of expression under Article 10 ECHR should prevail over the Claimant’s privacy rights under Article 8 ECHR in the context of the proposed publication.
3. Whether an interim injunction restraining publication of the confidential or private information should be continued, having regard to the Human Rights Act 1998 s.12 and relevant case law.
4. The appropriate scope and precision of any injunction to balance the competing rights and public interest considerations.

Arguments of the Parties

Appellant's Arguments (Claimant)

• The Defendant refused to give an undertaking not to publish information about the Claimant’s interview under caution, justifying the Claimant’s fear of publication.
• Twenty-four hours’ notice prior to any publication is insufficient to protect the Claimant’s rights.
• Even if the interview under caution is not mentioned, the Defendant’s article about Company A’s investigation could imply the Claimant is personally under investigation, infringing his reasonable expectation of privacy under Article 8 ECHR.
• The fact of the police investigation and the Claimant’s interview under caution constitute confidential information; publication would breach confidence, especially if sourced unlawfully, though this claim does not add greater protection beyond privacy rights.
• The Claimant’s privacy rights outweigh the Defendant’s freedom of expression rights in this context, justifying an interim injunction compatible with s.12 of the Human Rights Act 1998.

Appellee's Arguments (Defendant)

• The Defendant does not currently intend to publish the fact that the Claimant was interviewed under caution and would give 24 hours’ advance notice if this intention changes.
• Publication of the interview fact would engage Article 8 rights, and as matters stand, the Defendant accepts Article 8 precludes such publication.
• Unlike in Weller v Associated Newspapers Ltd, the Defendant’s open position means the Claimant cannot show sufficient grounds for fear of publication to justify an injunction.
• Twenty-four hours’ notice is adequate for the Claimant to seek court protection if needed.
• There is a public interest in reporting the police investigation into Company A and the wider financial crime context.
• Because the Claimant is prominently associated with Company A, any article about the company’s investigation is likely to be understood as implicating the Claimant personally; however, the Defendant cannot truthfully disclaim such an implication.
• The injunction must be drafted with precision to avoid unjustified restrictions and risks of contempt.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Weller v Associated Newspapers Ltd [2014] EWHC 2127 (QB)	Approach to injunctions restraining publication of private information and refusal to give undertakings.	Referenced regarding the Defendant’s refusal to give an undertaking and the Court’s discretion in granting injunctions.
Weller v Associated Newspapers Ltd [2016] 1 WLR 1541	Consideration of discretion in injunctions restraining publication under Article 8 and Article 10 rights.	Distinguished on the basis that the Defendant’s position in the present case was more conciliatory.
Attorney-General for Dominion of Canada v Ritchie Contracting and Supply Co. Ltd. [1919] AC 999 (PC)	Principles governing quia timet injunctions requiring proof of probable future injury.	Applied to assess the necessity of the injunction based on apprehended harm.
Proctor v Bayley (1889) 42 Ch. 390	Requirement that injunctions are granted only where there is a real risk of repetition of wrongful acts.	Supported the analysis of the threshold for granting injunctions.
American Cyanamid Co Ltd v Ethicon Ltd [1975] AC 396	General principles for interim injunctions and their modification when freedom of expression is involved.	Guided the adjustment of the usual test in light of s.12 Human Rights Act 1998.
Cream Holdings Ltd v Banerjee [2005] 1 AC 253	Requirement under s.12(3) Human Rights Act 1998 that the claimant is likely to succeed at trial to restrain publication.	Applied to assess the likelihood of success necessary for the injunction.
Campbell v MGN Ltd [2004] 2 AC 457	Test for reasonable expectation of privacy engaging Article 8 rights.	Used to determine whether the Claimant’s privacy rights were engaged.
In Re S (A Child) [2005] 1 AC 593	Balancing Article 8 and Article 10 rights with an intense focus on the facts.	Applied in the balancing exercise between privacy and freedom of expression.
PJS v News Group Newspapers Ltd [2016] 2 WLR 1253 (SC)	Emphasizes fact-specific balancing of privacy and freedom of expression rights.	Supported the approach to balancing competing Convention rights.
K v News Group Newspapers Ltd [2011] 1 WLR 1827 (CA)	Consideration of Article 8 interests of children in privacy cases.	Referenced regarding the Claimant’s children and their privacy interests.
PNM v Times Newspapers Ltd [2014] EMLR 30 (CA)	Consideration of privacy in relation to arrested persons and publication of identity.	Provided judicial support for the cautious approach to publishing identity of persons under investigation.
Murray v Express Newspapers Ltd [2009] Ch 481 (CA)	Factors affecting reasonable expectation of privacy, including the place of events.	Considered in assessing the Claimant’s privacy expectations regarding the investigation.
Axel Springer v Germany (2012) 55 EHRR 6	Public nature of events affects privacy expectations.	Applied to the fact-sensitive nature of privacy claims.
Bonnard v Perryman [1891] 2 Ch 269	Reluctance to grant injunctions restraining publication of defamatory statements before trial.	Distinguished because the present claim is primarily privacy-based, not defamation.
Greene v Associated Newspapers Ltd [2005] QB 972	Defamation law principles on injunctions and defences.	Referenced in relation to the distinction between defamation and privacy claims.
Terry v Persons Unknown [2010] EMLR 16	Overlap between privacy and defamation claims and their limitations.	Discussed to clarify the nature of the Claimant’s claim as privacy rather than reputation.
Commissioner of Police of the Metropolis v Times Newspapers Ltd [2014] EMLR 1	Reference to Data Protection Act in context of privacy and Article 8 claims.	Considered for support on the sensitivity of information about alleged offences.
Kent County Council v The Mother, The Father and B [2004] EWHC 411 (Fam)	Limits on court’s role in editorial decisions.	Referenced to caution against the court acting as an editor in injunction framing.

Court's Reasoning and Analysis

The Court began by considering the threshold for granting a quia timet injunction, requiring the Claimant to demonstrate a real risk of future injury to his rights. It was accepted that the Defendant currently does not intend to publish the fact that the Claimant was interviewed under caution and would give 24 hours’ notice if that intention changed. The Court found this position credible and held that the Claimant failed to establish a real risk of publication of that specific information, thus failing at the first hurdle in relation to that fact.

However, the Court recognized that the Defendant’s proposed article about the police investigation of Company A could implicitly convey that the Claimant personally was under investigation, given his prominent association with the company. The Court found that the Claimant had a reasonable expectation of privacy in relation to the information that he was personally under police investigation.

In balancing the Claimant’s Article 8 privacy rights against the Defendant’s Article 10 freedom of expression rights, the Court acknowledged the public interest in reporting a substantial police investigation into financial crime involving Company A. The injunction sought would not prevent publication of the investigation into Company A but would restrain publication of information relating to the Claimant personally.

The Court emphasized the need for precision in the injunction’s terms, particularly regarding the use of the word “using” information. The Claimant conceded that this word should be omitted to avoid inhibiting the Defendant’s investigative activities. The Court accepted that the injunction as amended would be sufficiently precise.

Additional personal circumstances of the Claimant, including concerns about his children and health, were noted but did not affect the overall balancing exercise, which was primarily focused on the competing Convention rights in a business context.

Ultimately, the Court concluded that the Claimant was likely to succeed at trial in establishing his reasonable expectation of privacy and that the Defendant’s freedom of expression did not prevail in respect of publishing information that the Claimant himself was under investigation.

Holding and Implications

The Court GRANTED the application to continue the injunction initially made by Dove J., with the modification that the injunction would not include the prohibition on “using” the information, only on publishing, communicating, or disclosing it.

The injunction restrains the Defendant from publishing or disclosing confidential or private information concerning the Claimant’s police investigation, specifically preventing the publication of information implying the Claimant personally is under investigation, while allowing publication about Company A’s investigation.

The Defendant is permitted to apply to discharge or vary the injunction on 24 hours’ notice, but any such application would require a significant change in circumstances to succeed.

No new legal precedent was established; the decision applies existing principles on privacy, freedom of expression, and injunctions in the context of ongoing police investigations and media reporting.