This is the concluding part of this two part post. The first part was published on 14 July 2010
The focus of the court in Terry on the question of what the claim was ‘really’ about—misuse of private information or protection of reputation—with a view to determining which set of rules governing the grant or refusal of interim injunctive relief was applicable, appears to us to be unsatisfactory. It places a premium on specialist knowledge and clever drafting: on whether an applicant can formulate the evidence in the right way to get the desired result. It also seems to us to invite judicial idiosyncrasy—the question of which set of rules prevails being dependent upon whether the particular judge hearing the application is disposed to take the claim at face value or to look beneath the surface—and as such is a recipe for uncertainty. This does not seem desirable in the interests of justice.
Moreover, the distinctions being drawn by the court in Terry between the form of the claim (breach of confidence/misuse of private information) and its perceived substance (defamation) only matter, for the purpose of interim injunctive relief at any rate, because of the discrepancy between the test in Bonnard v Perryman and that applicable in non-defamation, freedom of expression cases (s 12(3) HRA, as interpreted in Cream Holdings Ltd v Banerjee) Tugendhat J, of course, as a first instance judge, was bound by the Court of Appeal’s decision in Greene. But is Greene good law? In other words, in light of relevant developments in the substantive law of defamation and misuse of private information since Greene, is the rule in Bonnard v Perryman sustainable, at least so far as concerns cases involving information that is private to individuals?
In our view, there are good reasons to think not. We highlight the following points:
(i) If the information that an applicant for an interim injunction wishes to prevent publication of is private to the applicant and its publication is liable to be intrusive in some serious was (In relation to ‘seriousness’, see Wood v Commissioner of Police for the Metropolis  EWCA Civ 414  ) such that his Article 8 rights are engaged, why should it matter—for the purpose of stage 1 of the Re S analysis at any rate—whether the information is also true, false, defamatory or possesses a mixture of these qualities? Surely the question at stage 1 ought simply to be ‘are the applicant’s Article 8 rights engaged?’ or ‘is the threatened publication liable to be intrusive?’, regardless of whether the information at issue also is or is alleged to be true, false, defamatory or otherwise. Such considerations might well be relevant at Re S stage 2, the process of ‘parallel analysis’ whereby the court seeks to determine where the balance between Article 8 and Article 10 ought to be struck, taking into account all the circumstances. But as the law stands (ie the law as applied in Terry), if upon an application for interim injunctive relief the analysis at stage 1 is that the information in question is private but also happens to be defamatory, the court is apparently barred ab initio from giving any effect at all to the applicant’s Article 8 rights.
(ii) Further, and in any event, the UK Supreme Court has now ruled definitively that protection of reputation falls within the scope of an individual’s rights under Article 8. This development of itself would appear to suggest that where an individual asks the court to give effect to his Article 8 rights by granting an interim injunction to prevent the publication of words which if published would damage his reputation, an application which would also necessarily engage Article 10, the court ought to follow the approach mandated by the House of Lords in Re S and evaluate and strike the balance between those competing rights, including by subjecting ‘the comparative importance of the specific rights being claimed in the individual case’ to ‘an intense focus’.
(iii) In this regard, although the Court of Appeal in Greene indicated that it was content to proceed on the assumption that a person’s right to protect his/her reputation was among the rights guaranteed by Article 8, that assumption was not followed through in any meaningful way in the court’s judgment. In particular, the court made no attempt to reconcile its decision to uphold the rule in Bonnard v Perryman with the approach mandated for ‘conflicting rights’ cases by the House of Lords in Re S. The House of Lords’ decision in Re S, it may be observed, was handed down (on 28 October 2004) only after argument had concluded in Greene in the Court of Appeal (21 October 2004), but before the court had delivered its judgment (5 November 2004)(see [79–81]). In such circumstances, and against the backdrop of the law generally in this field being in a state of rapid flux at this time, the Court of Appeal in Greene might certainly be forgiven if, with the benefit of hindsight, it appears that it failed to apply Re S correctly.
(iv) The ECHR is concerned to guarantee rights that are practical and effective, not theoretical or illusory (see See eg Von Hannover v Germany (2005) 40 EHRR 1, ). In practical terms, pre-publication injunctive relief is the most important remedy in cases concerning the disclosure of private information. In this area of law, prevention is always likely to be better (ie more effective) than cure. As Eady J put the matter in Mosley v News Group Newspapers Ltd: ‘Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain.’ ( EWHC 1777 (QB)) Damages or some other form of financial compensation after the event will very rarely be an adequate remedy. Turning again to Eady J in the Mosley case: ‘It has to be recognised that no amount of damages can fully compensate the claimant for the damage done. He is hardly exaggerating when he says that his life is ruined. What can be achieved by a monetary award in the circumstances is limited.’  The proposition that interim injunctive relief is the most important remedy in the Article 8 context also lies at the heart of Mr Mosley’s pending application to the ECtHR against the UK (Mosley v UK (App no 48009/08) lodged 28 September 2008.). His complaint is that the UK has violated its positive obligations under Article 8 of the Convention by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of the materials … Under Article 13 … there was no effective domestic remedy open to him. Although the court found a serious breach of his right to respect for privacy and he was awarded damages, this award was not able to restore his privacy to him. He contended that only the possibility to seek an interim injunction prior to publication could constitute an effective remedy in his case. This argument appears to have found some favour with the House of Commons Culture, Media and Sport Select Committee which, in its Report on Press Standards, Privacy and Libel published on 24 February 2010, recommended that the Press Complaints Commission amend its Code to include a requirement that in cases involving individual privacy and breach of confidence journalists should notify the subject of their articles prior to publication subject to a ‘public interest’ test, although it ruled out making pre-notification mandatory. In terms of the adequacy of damages as a remedy, it is unclear why similar considerations should not in principle apply to information which if published would injure reputation. As Lord Nicholls remarked in Reynolds v Times Newspapers Ltd, ‘Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever.’ ( 1 AC 127, 201 per Lord Nicholls.) See also the observation of Bingham LJ (as he then was) in Slipper v BBC that ‘Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs’ (1991] 1 QB 283, 300.) Can hidden springs polluted by a libel ever be completely decontaminated by an award of damages?
(v) Balance and proportionality lie at the heart of the ECHR and its jurisprudence and the way in which the Convention and its jurisprudence are applied by the courts in this country. The ECtHR jurisprudence eschews mechanical tests and rigid bars to relief of the type embodied in Bonnard v Perryman. This was the very point of the approach espoused by Lord Steyn in Re S.
(vi) The possibility of the rule in Bonnard v Perryman being revisited and revised has been raised by Eady J extrajudicially on two occasions. In a speech entitled ‘Privacy and the Press: Where are we now?’ given on 1 December 2009, Sir David Eady posed the question:
Will the rule in Bonnard v Perryman survive scrutiny in the light of the Strasbourg jurisprudence, given that its effect is to build in an automatic priority for Article 10? Is it justifiable to have one test for interlocutory injunctions in a privacy context, governed by s 12(3) of the Human Rights Act, and another for libel cases, governed by Bonnard v Perryman? Each of these rules is concerned to afford the appropriate degree of recognition for rights now regarded, apparently, as being under the protection of Article 8.
Furthermore, in another speech given at the University of Hertfordshire on 10 November 2009, Sir David Eady put matters this way:
I noted earlier that the House of Lords has never had occasion to consider Bonnard v Perryman. It may well be, if the opportunity arises, that the approach in Greene v Associated Newspapers will be endorsed by the new Supreme Court. But it has to be remembered that s 12(3) and Bonnard v Perryman are both to be regarded, in terms of the European Convention, as attempts to strike a balance between competing rights. Both address situations where a defendant’s Article 10 rights come into conflict (at least potentially) with the rights of the complainant. Moreover, in recent years it has come to be recognised in Strasbourg that not only the right to privacy but also the right to reputation falls under the general protection of Article 8: see Radio France v France (2005) 40 EHRR 29 and Pfeifer v Austria (2009) 48 EHRR 8. In any event, the right to reputation had always been expressly recognised in Article 12 of the Universal Declaration of Human Rights and, more recently, in Article 17(1) of the International Covenant on Civil and Political Rights of 1996.
The question therefore arises as to why a different test should be applied to reputation cases from that laid down by Parliament for those concerning protection of privacy. What is the reason why it is, and should remain, more difficult to obtain an injunction to protect reputation than to protect another aspect of human dignity and autonomy, even though both are covered by Article 8? It may prove to be a sufficient answer as a matter of public policy that, in the case of defamation, damages are more often likely to provide an adequate remedy, whereas in privacy cases they are not. But the question at least needs to be addressed overtly …
The question has thus to be asked at some stage why a different test should be applied at the early and often critical stage of considering prior restraint. It is a very important issue of public policy. It is not for me to argue for one position or the other. But the question of principle needs to be addressed and resolved. [Meanwhile] the current distinction can be seen as a significant reason why infringement of privacy is proving for the moment, at least numerically, to be much more popular than libel.
The rule in Bonnard v Perryman is not a jurisprudential sacred cow that needs to be culled, but it seems reasonably clear that certain parts of it need to be sacrificed. We propose the following: if
(a) the information at issue is recognisably private such as to engage an individual claimant’s Article 8 right to respect for private life (regardless of whether it is also true, false, defamatory or otherwise), or
(b) the information at issue is defamatory of an individual claimant such as to engage his Article 8 right to protection of reputation as an aspect of his right to respect for private life,
the applicable test for the grant or refusal of interim injunctive relief ought to be that provided for in section 12(3) HRA as interpreted by the House of Lords in Cream Holdings Ltd v Banerjee. We note that while formulation (b) is certainly supported by the decision of the Supreme Court in In re Guardian News and Media Ltd & Others  2 WLR 325 and the underlying Strasbourg jurisprudence, we recognise that this may be to define the category of defamatory information to which s 12(3) HRA ought to apply too widely. We accept that it may be appropriate for the category to be confined to ‘defamatory information which is private in character and whose publication would be intrusive (eg sexual or financial)’.
For the avoidance of doubt, because corporations do not have Article 8 rights (in any sense that is meaningful to this analysis, at any rate – See eg Hays plc v Hartley  EWHC 1068 (QB), para 25), we see no reason why the test in Bonnard v Perryman needs to be modified in defamation cases where the claimant is a corporation.
This is not, we might add, intended to be a charter for more injunctions. There is no particular reason to think that if the new rule identified above were introduced more interim injunction applications would succeed. For instance, as Tugendhat J observed in connection with his ‘third group of cases’ ‘where the information relates to conduct which is voluntary, and alleged to be seriously unlawful, even if it is personal’, whether the application for an interim injunction was brought under the (current) law of defamation or misuse of private information was unlikely to make a difference to the result of the application: ‘The claimant is unlikely to succeed whether at an interim application or (if the allegation is proved) at trial, whether under the law of defamation or the law of privacy.’ Moreover, albeit that the Terry application on its facts fell into the more difficult ‘fourth group of cases’ ‘where the information relates to conduct which is voluntary, discreditable, and personal … but not unlawful (or not seriously so)’ and so ‘where’, according to Tugendhat J, ‘it may make a difference which law governs’, regardless of the defamation/Bonnard v Perryman angle, ie if the only relevant law had been misuse of private information, the application would still have been dismissed (Terry [124–132]).
In summary, our argument is that the court ought to have the power in all cases where an individual’s Article 8 rights are engaged to weigh up the relative merits of the parties’ positions, conflicting rights and competing submissions, and decide where the balance ought to be struck to do justice, in the public interest. Were the new rule to be adopted, we imagine that truth (or asserted truth) would remain an important factor in cases where the information at issue is defamatory of the applicant. But we believe that in cases where the applicant’s Article 8 rights are engaged, the asserted truth of the information at issue should no longer be a complete answer to an application for interim injunctive relief.
Godwin Busutill and Patrick McCafferty are Barristers, 5RB (Chambers of Desmond Browne QC & Adrienne Page QC), 5 Raymond Buildings, Gray’s Inn, London, UK. A fuller version of this post was first published by Hart Publishing in the Journal of Media Law (2010) 2, pp.1-13. It is reproduced with permission and thanks.