In Weller and others v Associated Newspapers Limited, ([2015] EWCA Civ 1176) the Court of Appeal has rejected an appeal by Associated Newspapers Limited, publishers of the Mail Online website, against a finding of liability in the tort of misuse of private information arising from the unauthorised publication of unpixelated paparazzi photographs of Paul Weller’s children taken on a family outing, which were originally published by the Mail Online in October 2012, and an injunction preventing re-publication of the same.
Background
In the High Court’s judgment dated 16 April 2014 ([2014] EWHC 1163 (QB)), Mr Justice Dingemans held that the defendant was liable for misuse of private information as a result of the unauthorised publication of unpixelated paparazzi photographs of Paul Weller’s children. He did not, however, initially grant an injunction as the claimants were unable to identify satisfactory wording to deal with future publications and photographs. However, he did note that “the effect of this judgment should be to provide some reassurance to Paul and Hannah Weller that unpixelated photographs of the faces of the children will not be published again to illustrate articles of the type which was the subject of this action“. Although the Mail Online had stated in correspondence that it would not re-publish the photographs of Mr Weller’s children, the judge held that an “undertaking not to publish the photographs again should be offered to the Court to provide clarity for the parties“.
The Mail Online refused to provide the undertaking, and on 12 June 2014 a second hearing was held to decide whether further relief should be granted to the claimants. At that hearing, Mr Justice Dingemans decided to grant an injunction to restrain further publication of the photographs complained of. In doing so, he referred to the leading authority Proctor v Bailey(1889) 42 Ch 390, which states that “… an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction“.
The judge decided that, despite there being no evidence that Mail Online would publish the photographs again (on the basis that the Mail Online said they would not in a letter dated 4 December 2012), there were grounds for concern regarding future publication which justified the grant of an injunction, namely:
- That the defendant was seeking permission to appeal his judgment and continued to contend that publication of the photographs was lawful, meaning there was “at least the beginnings of cause for concern that they [the photographs] will be further published“.
- That people can go back on what they have said they will do in letters. In making this point, the judge referred to a correction made in correspondence by the defendant.
- That the defendant’s skeleton argument addressing this point “appeared to show no recognition of the [claimants’] article 8 rights“.
Court of Appeal decision
At appeal level, counsel for the defendant submitted that these grounds for concern were insufficient to justify the grant of an injunction and that, in the absence of an intention to republish, the grant of an injunction would have serious adverse consequences for freedom of expression. The Master of the Rolls (Lord Justice Dyson), who gave the leading judgment on appeal, agreed there was “force” in the criticisms of the grounds for concern listed above but stated that, as the grant of an injunction was an exercise of discretion, it could only be “successfully challenged on the familiar grounds for interfering with such a decision” and “the question is not whether this court would have exercised the discretion in the same way as the judge did, but whether his decision was one that was reasonably open to him“.
The Master of the Rolls went on to consider the facts of the case and in particular that although the Mail Online maintained it had no intention of republishing the photographs, it was concerning that it had refused to provide an undertaking to the court or any explanation for this refusal. He held that, although the three concerns identified by the judge “were not compelling . . .he was entitled in the exercise of his discretion to conclude that their cumulative effect was sufficient to justify the granting of an injunction limited to prohibiting republication of the Photographs“. He rejected the defendant’s argument that such an injunction would have adverse consequences for freedom of expression, stating that “if a defendant has no intention of publishing, then there can be no inhibition on its freedom of expression in relation to that publication and it can have no impact on its freedom of expression in relation to any other publication“.
Comment
The injunction was limited to the specific photographs complained of, which shows the weight given by the court to freedom of expression when it comes to granting media injunctions. However, it also raises the question as to whether it would have been possible for the court to draft satisfactory wording for a general, wider injunction preventing the publication of similar photographs of the children. In a case where the balance between the article 8 rights of the claimants and the article 10 rights of the defendant needs to be considered on an individual basis in relation to each photograph, this would have been extremely difficult to achieve in certain terms.
The judgment also indicates that claimants may be justified in seeking limited injunctions from the court in circumstances where, despite assurances not to publish, media defendants have refused to provide them with appropriate undertakings.
This post originally appeared on the Injunctions blog and is reproduced with permission and thanks
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