Page 139 - Law and the Media

Law and the Media
ready at the earliest possible moment. If the claimant fails to obtain an injunction and the
information is published, the action is likely quietly to go away. If an interim injunction is
granted, it is seldom economically worthwhile for a media organization to incur the expense
of proceeding to trial just to publish a story. The costs of litigation are prohibitive, and the
risk of an order to pay the successful claimant’s costs as well as the defendant’s own costs
is often the ultimate deterrent. In X v Y, the case concerning publication of information
relating to doctors diagnosed with AIDS, the cost of the trial was more than £200 000. The
costs of the Spycatcher trials around the world ran into millions of pounds.

The publisher in possession of confidential information is faced with a dilemma. On the one
hand, he may wish to confirm the authenticity of the information with the owner of the
information for editorial or legal reasons. However, this may put the owner on notice and
lead to an action for breach of confidence and an application for an interim injunction. There
is no easy answer. Failure to check the information may lead to an incorrect story and an
expensive defamation action. Checking may lead to an interim injunction. However, at the
least the issue is then addressed correctly by the court.

Impact of Human Rights Act 1998
Prior to the enactment of the Human Rights Act 1998, it was relatively straightforward for
a claimant to obtain an interim injunction restraining publication on an ex parte basis, in
other words without giving notice of the application to the defendant. A simple telephone call
to the duty judge at the High Court in London, even as the presses were rolling or the
programme was about to be broadcast, could be sufficient to obtain an ex parte injunction in
situations regarded by the court as sufficiently serious. The first the defendant would hear of
the court order would be a phone call warning that the injunction had been issued. The
television presenter Anne Diamond obtained an injunction preventing a story sold by her ex-
nanny from appearing on the front page of the Sun in precisely this way.

In the normal course of events, if the defendant wished to discharge the ex parte injunction
an inter partes hearing would take place, where both parties would appear before the court,
call evidence, and argue as to whether the confidential information should be published
pending trial. The court would balance the interests of both parties until the full facts could
be investigated at trial using the principles set out in American Cyanamid v Ethicon Ltd
(1975).

The Human Rights Act (‘the HRA’) 1998 has changed the procedure for ex parte and inter
partes interim injunctions. Under Section 12 of the HRA, injunctions made in the absence of
the defendant are now prohibited unless there are compelling reasons why the defendant
should not be notified. Furthermore, the principles in American Cyanamid no longer apply.
Section 12(3) of the HRA provides that no relief is to be granted to restrain publication before
trial ‘unless the court is satisfied that the applicant is likely to establish that publication should
not be allowed’. Section 12(4) of the HRA provides that the court must have particular regard
to freedom of expression, and must consider the extent to which the material is available in the
public domain or whether it is in the public interest to publish it.
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