Full case report
K v News Group Newspapers Ltd (also known as ETK v News Group Newspapers Ltd)
Reference  EWCA Civ 439
Court Court of Appeal (Civil Division)
Judge Ward, Laws & Moore-Bick LJJ
Date of Judgment 19 Apr 2011
Interim injunction- article 8- right to respect for private life- children- article 10- freedom of expression- public interest
In about November 2009, the appellant, a married man who worked in the entertainment industry, began a sexual relationship with a woman, X, herself married. The relationship became obvious to those with whom the appellant and X were working. In April 2010, the appellant’s wife found out, following which the appellant and X ended their relationship as part of the appellant’s attempt to rebuild his wife’s trust and their marriage, not least for the sake of their teenage children. They continued to work together thereafter.
In December 2010, their employers informed X that her services would no long be required. News of the events was leaked to D, whose enquiries alerted the appellant to its wish to publish the fact of the affair and that the affair was the real cause of X leaving her employment. The applicant applied for an injunction, which was supported both by his wife and by X, both of whom made it clear that they did not want their privacy invaded.
Collins J found that there was a reasonable expectation of privacy but held that there was a public interest in the effect of the adultery and so refused the injunction because the respondent intended to go no further than reporting the fact of the affair with the resultant dismissal of X. The adverse effect on the children did not suffice to tip the balance in favour of granting an injunction.
1. Whether the appellant had a reasonable expectation of privacy in respect of these matters; and
2. Whether the appellant’s claim was likely to succeed, balancing the Article 8 rights of the appellant, his family and X on the one hand with D’s right to publish on the other?
Allowing the appeal and granting the interlocutory injunction in the terms sought:
1. The judge had been correct to hold that the appellant’s Article 8 rights had been engaged. The sexual relationship was an essentially private matter. That it had become known to work colleagues did not put the information into the public domain, Browne v Associated Newspapers Ltd  QB 103 considered. The appellant was reasonably entitled to expect that his colleagues would treat the information as confidential. A reasonable person of ordinary sensibilities would have found the disclosure offensive.
2. The case was one where it was more likely than not that an injunction would be granted following a trial (as required by s.12(3) Human Rights Act 1998):
(i) Weight had to be given not only to the appellant’s Article 8 rights but also to those of his wife, children and X. It was not clear to what extent, if at all, Collins J had paid regard to the Article 8 rights of anyone bar the appellant. X’s rights were at the very forefront of the story D wished to publish, namely that it was the fact of their adultery that led to the termination of her employment. X had made it clear to the Court of Appeal that she had no intention of bringing proceedings either against her employer or the appellant. She had supported the application for injunctive relief. The appellant’s wife equally clearly opposed publicity.
(ii) The judge had erred in finding that the harmful effect on the children could not tip the balance where the adverse publicity arose because of the way that the children’s father had behaved. The purpose of the injunction was both to preserve the stability of the family life while the appellant and his wife pursued a reconciliation and to save the children the ordeal of playground ridicule that would inevitably follow publicity. The interests of children did not automatically take precedence over the Convention rights of others, but the court should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests, ZH(Tanzania) v Secretary of State for the Home Department  UKSC 4 and Re S (A Child) (Identification: Restrictions on Publication)  1 AC 593 considered.
(iii) The benefits to be achieved by publication in the interests of free speech were wholly outweighed by the harm that would be done through the interference with the rights of privacy of all those affected, especially where the rights of the children were in play.
(iv) The decisive factor was the contribution the published information would make to a debate of general interest. The reasons for X leaving gave rise to no debate of general interest; they may have interested some members of the public but the matters were not of public interest.
This application of the Article 8/Article 10 balancing exercise is particularly significant for its analysis of childrens’ Article 8 rights. Drawing on international human rights instruments and immigration case law to reach its conclusion (see - of the judgment) the Court of Appeal made clear that the interests of children must feature prominently when deciding whether to grant a privacy injunction. Where a tangible and objective public interest favours publication, the balance may be difficult to strike, but public prurience will not constitute a sufficient justification for interference with the private rights of those involved, especially where children are involved.
Schillings Solicitors for the Appellant, Farrer & Co for the Respondent
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.