Page 235 - Law and the Media

Law and the Media
infringement, breach of copyright or breach of confidence to be a ‘vehicle’ for what is,
essentially, a defamation claim. If the essence of the complaint is that an attack on the
claimant’s reputation is threatened, the court will not grant an injunction unless the strict
criteria that apply in defamation cases are satisfied, as was the case in Francome v Mirror
Group (1984).

Even where there is a claim for a breach of a contract not to publish the material complained
of, the court will not grant an injunction simply on the basis of an arguable claim. Instead,
it will assess the relative strengths of the parties’ cases (Cambridge Nutrition v BBC
(1990)).

12.4.2 Breach of confidence

General principles
The most important basis upon which a claimant may obtain ‘prior restraint’ of publications
is a claim of breach of confidence. Proceedings for confidential information are in a special
category because:

. . . if, pending the trial, the court allows publication, there is no point in having a trial
since the cloak of confidentiality can never be restored. Confidential information is
like an ice cube . . . Give it to the party who has no refrigerator or will not agree to
keep it in one, and by the time of the trial you just have a pool of water.
(A-G v Guardian Newspapers (1987)).

Interim injunctions to restrain breaches of confidence can have a serious effect on the
freedom of expression of the media. In the well-known Spycatcher litigation, the
Government obtained injunctions to restrain the publication of a book by a former
intelligence officer, Peter Wright. The interim injunctions were continued by the House of
Lords despite the fact that book had been published in Australia and the United States (A-G
v Guardian Newspapers (1987)). In Observer & Guardian v United Kingdom (1991), the
European Court of Human Rights held that this was a breach of Article 10 of the European
Convention on Human Rights. Although the grant of the interim injunction at the outset was
in accordance with Article 10, the continuation of the injunction after the publication of the
book in the United States was unnecessary.

Public domain
The court will not, of course, grant an injunction in a breach of confidence claim to restrain
the publication of information that is already in the public domain. Any injunction should be
qualified to exclude such information.

Even in a case involving ‘national security’, a newspaper cannot be required to seek
confirmation from the Attorney General that facts that it intends to publish are in the public
domain (A-G v Times Newspapers (2001)).
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