On 9 March 2011, in the case of MNB v News Group Newspapers ([2011] EWHC 528 (QB)) Mrs Justice Sharp granted a privacy injunction to restrain the publication of a range of information which tended to identify the claimant and which related to the subject matter of the action. This information had been published by the “Sun” newspaper despite the fact that an injunction had been granted in DFT terms at an earlier hearing.

The case concerned an alleged sexual relationship between a wealthy, married senior business executive and another person. The “Sun” threatened to publish a story about this relationship. On 1 March 2011 the claimant applied, successfully, to Mr Justice Henriques, the duty judge, for an urgent injunction to restrain publication. The application for an injunction was contested but the “Sun” had abandoned its principal public interest justification for publication and the injunction was granted. The judge ordered that the Claimant could be anonymised.

Paragraph 1 of the order made prohibited the publication until the return date (4 March 2011) of:

“(a) Any information concerning the subject matter of these proceedings or any information identifying or tending to identify the applicant save for that contained in this Order and in any public judgment of the court given in this action.

(b) Any information concerning the fact or details of any sexual relationship between the Applicant and the person named in the Confidential Schedule to the Order…..“

The case came on before Mrs Justice Sharp on 4 March 2011. The injunction itself was no longer opposed by the “Sun” newspaper and the judge was satisfied that it was proper to grant an injunction in the terms sought.

The issue between the parties concerned an article published in the “Sun” on 3 March 2011 (“the Article”). This article referred to the fact that an individual with a particular occupation had “gagged” the “Sun”. The claimant submitted that the purpose of paragraph 1 of the order is to stop “jigsaw identification”: that is, different newspapers publishing different items of information about a claimant, none of which, on their own directly identifies the claimant but which risk doing so when put together. The purpose was to provide “bright lines” between what is permissible and what is not; in circumstances where a so-called “super injunction” would be regarded as too draconian, but nonetheless a claimant’s Article 8 rights need to be protected. The claimant’s counsel submitted that the Article was in clear breach of the Order.

The Sun argued that there was no breach as the claimant was not named or identified and the details published did not tend to identify him or concern the subject matter of the action.

After considering the cases of Donald v Ntuli ([2010] EWCA Civ 1276), and JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42), the judge held that the purpose of the order which had been made was

the protection on the one hand of the ability of the press to report the proceedings, and on the other, of the article 8 rights of the claimant against the risk in particular of “jigsaw identification” if he or she is anonymised. This could defeat the purpose of an interim injunction, and indeed potentially, the purpose of the action itself.  By its nature, jigsaw identification involves the separate publication by different entities of different items of information which do not identify the claimant when looked at separately, but do so or risk doing so, when they are put together. Such information therefore does not have to actually identify a claimant. Nor need it be private. The conjunction of publicly available information with the report of proceedings may well lead to “two and two” being put together. [33]

She concluded:

“First, in my judgment the purpose of the order made by Henriques J was to prevent the publication of items of information which actually identified the Claimant or which tended to identify him (that is, they might, in conjunction with other information as explained above).  Second, publication of the details to which particular objection is taken fall within the category of information which tends to lead to his identification. Third, the subject matter of the action is the affair; comment by relatives or others which reveal information about the affair (for example, its length, when it occurred, the parties’ reaction to what has occurred, or their current status) is therefore information concerning the subject matter of these proceedings. Fourth, the Claimant is likely to establish at trial that he is entitled to an order in the form or substantially in the form made by Henriques J in paragraph 1 of the Order. He is likely to do so on the ground that such an order is necessary (i) to prevent the risk of jigsaw identification thus frustrating the purpose of the court’s order prohibiting the publication of the information (whether on an interim or final basis); and therefore (ii) to protect his article 8 rights in the private information this action is brought to protect and in his identification as the person concerned – bearing in mind the principles set out in JIH to which I have referred above, and in accordance with the proper approach to such applications where the article 8 rights of the claimant and the article 10 rights of the defendant are engaged, as in my judgment they are here. [37]-[38]

As a result, on the facts, there is no sufficient general public interest in publishing the details to justify the seriousness of the interference with the article 8 rights of the Claimant, which would occur if he was identified. [39]

The Judge rejected the  Canute argument advanced by the defendant that the material had now come into the public domain on the basis that the point had not been reached where an order would achieve no purpose.  This was because

“The continued dissemination of the details by the Defendant itself continues and is likely to increase the risk that the Claimant will be identified“. [41]

Comment

Although the term is not used, this is a case about the operation of a “DFT” order – first made by Mrs Justice Sharp in DFT v TFD ([2010] EWHC 2335 (QB)).   The order originally made was designed to prevent the publication of material which could lead to a “jigsaw” identification of the claimant.  But the “Sun” went ahead and published this kind of material anyway.  The Judge neatly ducked the question as to whether there was a breach of the order by granting an extended privacy injunction to cover specifically the “identifying details” which appeared in the post injunction article.   The case is an important development in this area, and newspapers must be aware of the consequences of failing to comply with this new species of order.

Charlotte Harris is a partner at Mishcon de Reya