Reference:  EWHC 1601 (QB)
Judge: Slade J
Date of judgment: 13 Jun 2012
Summary: WXY- Gewanter- Positive Profile- Burby- injunction- privacy- harassment- confidentiality- terms of draft order- whether information has entered the public domain- identity of claimant- fade factor- disclosure of persons to whom documents published- disclosure of funders of litigation
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Aidan Eardley QC (Claimant)
Instructing Solicitors: C: Archerfield Partners LLP, D: Counsel instructed through the public access scheme
C had obtained judgment in her privacy claim against D3 restraining him from publishing her private or confidential information, from harassing her, and for damages for breach of confidence, misuse of private information and harassment. D3’s application to have the judgment set aside was dismissed. This hearing was to address the areas of the draft final order which remained in dispute.
At trial it had been held that none of the material on the confidential schedule had entered the public domain, but there was now a question as to whether or not some of the information was in fact public.
D3 tried to argue, through showing the court a number of websites which he alleged had references to WXY’s true identity, that the injunction would actually serve no purpose. He also sought to argue that there had been ‘worldwide media coverage’ as a result of his submission of evidence to a Parliamentary Committee, and that also included references to C’s true identity.
In contrast, C argued that the closest D3 had come to establishing that her identity had been dislosed was to show that there had been speculation as to who she was and, crucially, that was not enough to render the injunction pointless. In addition, C contended that much of the media interest had been fuelled by D3’s original publications.
There were also additional arguments over various terms of the order stipulating what information D3 was required to disclose.
(1) Had a sufficient amount of the information contained within the confidential schedule to the draft order entered the public domain to such an extent that the injunction ought not to be continued?
(2) Should D3 be required to disclose the names of those to whom he had published various documents where that had been done outside of England and Wales?
(3) Should D3 be required to give the name and the contact address of every person who had agreed to provide funding for the litigation?
(1) Speculation as to C’s identity had only been on a limited number of websites and no direct references were made to who she actually was. In relation to D3’s Parliamentary submissions, whilst some material may have remained on the internet, there were no new publications after about mid-March 2012, and memories of the story may have faded. An injunction would have utility in preventing the re-entry of the story onto the pages of the newspaper or the internet .
The Judge also noted that there was no evidence to suggest that the Art 8/10 balance that she had carried out at the time of granting the interim injunction ought to be re-visited. On the evidence the relevant material had not entered the public domain.
(2) D3 would only be required to disclose the names of those to whom he published documents in England and Wales, but not to those outside of the jurisdiction, as that would be to require information about acts over which the court has no jurisdiction .
(3) The details of all the persons who had provided funding for the litigation would need to be named; there was no good reason as to why this should not be done.
A very thorough approach to the question of whether or not the relevant information had entered the public domain is evident in this judgment. Claimants should take some comfort in knowing that, if courts continue to take a similar approach to this issue, a defendant will not be able to set aside an injunction simply by arguing that there has been speculation as to the claimant’s identity in the public domain after the injunction has been granted (especially where much of that speculation has been caused by the defendant’s publications).
Slade J’s explicit acknowledgement of the effect of the ‘fade factor’ in cases such as this is also notable. In particular, her reference to the role that injunctions can still play in terms of preventing new publications, notwithstanding the fact that some hints as to the confidential information might still exist in the public domain, represents useful judicial dictum on the point.