Group Ltd [2005] EMLR 748, paras 78-79, where he said that the question was not
whether information was generally accessible, but rather whether an injunction
would serve a useful purpose and by Briggs J in Rocknroll v News Group
Newspapers Ltd [2013] EWHC 24 (Ch), paras 22-26, where he also said that HRA
section 12(4)(a)(i) in his judgment “creates no separate or different test …, at least
where … there is no suggestion that the material is about to become available to the
public”.
27.
Eady J and Tugendhat J have since further elaborated the significance of the
principle in successive judgments in CTB v News Group Newspapers Ltd [2011]
EWHC 1326 (QB) and 1334 (QB). In CTB, as in the present case, an interim
injunction had been granted to restrain disclosure of information about an alleged
sexual relationship. In CTB the claimant was a well-known footballer who was
married and had a family. In the five or so weeks after the injunction was granted,
substantial information, from sources which could not be attributed to the defendant,
became available on Twitter and the internet generally identifying or pointing
towards the footballer. The defendants argued in effect that privacy injunctions (and
no doubt other forms of injunction also) had ceased to serve any useful purpose in
an age when information could be put out on various networks within or outside this
jurisdiction by persons other than the immediate defendant.
28.
More specifically, the defendants in CTB also placed reliance on Eady J’s
refusal of an injunction to Mr Max Mosley in Mosley v News Group Newspapers
Ltd [2008] EWHC 687 (QB). Eady J had there said that:
“The court should guard against slipping into playing the role
of King Canute. Even though an order may be desirable for the
protection of privacy, and may be made in accordance with the
principles currently being applied by the courts, there may
come a point where it would simply serve no useful purpose
and would merely be characterised, in the traditional
terminology, as a brutum fulmen. It is inappropriate for the
court to make vain gestures.”
In CTB Eady J explained why this statement did not cover the circumstances in CTB:
“18. The circumstances here are rather different. In Mosley,
I took the view that there was no point in granting an injunction
because, even before the application was made, several
hundred thousand people had seen the intimate video footage
which NGN had put on line - conduct that was recently
characterised by the ECtHR as a ‘flagrant and unjustified
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