Page 236 - Law and the Media

Prior Restraint
Applications for interim injunctions
Before the Human Rights Act 1998 the ordinary American Cynamid principles that governed
the grant of interim injunctions applied (American Cynamid v Ethicon Ltd (1975)). All the
claimant needed to show was that:

There was an arguable claim for breach of confidence, and
The ‘balance of convenience’ favoured the grant of an injunction.

This was a very easy test to satisfy, and interim injunctions were regularly granted to restrain
publication of confidential information, for example:

Information about a sexual relationship provided by one of the parties (Barrymore
v News Group Newspapers (1997))
Information from former employees of the security services concerning their
activities (A-G v Guardian Newspapers (1987)).

The position has now been changed by Section 12(3) of the Human Rights Act 1998.
This provides that an interim injunction that might affect the exercise of the right to
freedom of expression should not be granted unless the applicant is ‘likely to establish
that publication should not be allowed’. This is a stricter test than that in American
Cyanamid.

The principles to be applied when considering whether or not to grant an injunction
restraining the publication of confidential information were considered in the case of
London Regional Transport v The Mayor of London (2001). In that case, the Court of
Appeal stressed the importance of the Article 10 right to receive and impart
information:

Whether or not undertakings of confidentiality have been signed, both domestic
law and Art 10(2) would recognize the propriety of suppressing wanton or self-
interested disclosure of confidential information; but both correspondingly
recognize the legitimacy of disclosure, undertakings notwithstanding, if the
public interest in the free flow of information and ideas will be served by it.

It was suggested that, at least in cases involving public authorities, disclosure should only
be restricted if such a restriction:

Meets a recognized and pressing social need
Does not negate or restrict the right to freedom of expression more than is
necessary, and
The reasons given for it are logical.

This approach applies whether the court is considering an express confidentiality
undertaking or an implied obligation.
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