claimant must overcome in order to obtain an interim
injunction.
41.
Although it will be a matter for the trial judge at the end
of the day, I adhere to the view I expressed in January, namely
that the story which NGN proposes to publish is likely to be a
breach of the claimant’s article 8 rights. What has changed is
the weight which the claimant’s article 8 rights carry, when
balanced against NGN’s article 10 rights. Also the fact that
material is widely known must be relevant to the court’s
discretion.”
(iv) accepted that “the court should not set aside an injunction merely
because it has met with widespread disobedience or defiance” (para 42), but
noted that this was not a case of disobedience by the media, and that the
difficulty about any submission of defiance was that “the Internet and social
networking have a life of their own”; furthermore, that an English court “has
little control over what foreign newspapers and magazines may publish”
(para 44); and that “it does appear that those who want to find out the
individuals’ identities have already done so” (para 45).
18.
In these circumstances, the Court concluded, in Jackson LJ’s words, that
“47. In the situation which now prevails, I still think that the
claimant is likely to establish a breach of ECHR article 8. But,
notwithstanding the limited public interest in the proposed
story, I do not think that the claimant is ‘likely’ to obtain a
permanent injunction. I reach this conclusion for seven reasons:
i)
Knowledge of the relevant matters is now so widespread that
confidentiality has probably been lost.
ii)
Much of the harm which the injunction was intended to prevent
has already occurred. The relatives, friends and business
contacts of PJS and YMA all know perfectly well what it is
alleged that PJS has been doing. The ‘wall-to-wall excoriation’
which the claimant fears (CTB at 24) has been taking place for
the last two weeks in the English press. There have been
numerous headlines such as ‘celebrity love cheat’ and ‘Gag
celeb couple alleged to have had a threesome’. Many readers
know to whom that refers.
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