Privacy and Injunctions - Evidence - Parliament

Ministry of Justice and Department for Culture, Media and Sport—Written evidence
15. In Greene v Associated Newspapers Ltd [2005] QB 972 the Court of Appeal confirmed that
section 12(3) did not change the balance in defamation cases in a way that reduced
protection for Article 10. The Court of Appeal held that section 12(3) HRA did not require
a judge considering an application for an interim injunction restraining an alleged libel to ask
himself whether the claimant was more likely than not to be able to establish at trial that the
publication should not be allowed. Rather, in cases where the defendant pleaded justification
(i.e. substantial truth), the rule remained that a claimant would not be able to obtain such an
injunction before trial unless it was plain that the plea of justification was bound to fail. The
Court considered that to do otherwise would be too great a restriction on freedom of
expression and freedom of the press (see paragraph 78). Whittling down the right to
freedom of expression was clearly not Parliament’s intention in enacting section 12 and the
claimant’s Article 8 right to reputation could not be given great weight pre-trial. It was very
difficult to assess the merits of a justification defence pre-trial and the damage which may be
done by a libel can be remedied by vindicating the claimant (in contrast to the position in
relation to privacy injunctions where confidential information, once disclosed loses its
confidential quality).
Judgments of the lower courts in which section 12 has been applied:
16. The following are examples of recent cases in which section 12 has been applied by first
instance judges.
BKM v BBC [2009] EWHC 3151 (Ch) 316
• Mann J conducted a balancing exercise applying the principles set out in Re S (a Child).
In doing so, the judge paid very close regard to s.12(3) and it was a decisive factor in
his judgment (see paragraphs 23 and 37):
“I therefore have to conduct such an exercise, but with a very firm eye on section
12(3). I have to determine not only how the competition between the rights is to be
resolved for present purposes, but also to do so with an eye to determining whether
an injunction would be granted to restrain a broadcast at a trial. An injunction should
not be granted unless I am satisfied that at a trial it would be likely to be determined
(in the sense of more probable than not - see Cream Holdings v Bannerjee [2005] I AC
253) that the broadcast should not be allowed.”
“So the balancing process produces some weight on each side. At present it seems to
me that if the BBC lives up to its word and obscures the identity of residents, the
invasion of their privacy from broadcasting is likely to be relatively slight. The greater
weight lies on the public interest side of the argument. That would be my assessment
on the evidence that I have. That points against granting an injunction. However, the
BBC has the additional weight of sections 12(3) and 12(4) on its side of the scales. I
must give special weight to free speech, and then should only grant an injunction if I
316 BKM operated a care home which was inspected by the Care and Social Services Inspectorate for Wales and was found
to have shortcomings. The BBC wanted to make a documentary that had, as at least part of its theme, the point that the
regulation of care homes was not working. It wanted to use BKM as an example and used undercover reporters to
conduct secret filming. The defendant invited the claimant to comment on certain allegations. The claimant applied to
restrain the broadcast in order to protect the Article 8 rights of its residents. The defendant undertook to obscure the
identity of residents and relied on Art 10, s.12 HRA and said that it had acted in accordance with the OfCom guidelines.
An interim injunction to prevent further broadcast of a trailer for the programme was granted pending the final
determination of the substantive application in relation to the programme itself.
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