Media Injunction Application: Can Right to Life prevent publication?

Last week the High Court dismissed an application by a well-known man, referred to in Court as PPT, for a permanent injunction to stop ITN and The Guardian publishing allegations against him. Following the two-day trial, Mr Justice Nicklin delivered a detailed judgment rejecting the application on every ground sought. 

While we wait to see whether the man will appeal (during which time reporting restrictions remain in place), we look at the High Court Judge's decision below. It is an important judgment, not just because of the parties involved, but because of the Judge's findings on Article 2 and 3 of the European Convention on Human Rights ("ECHR"). 

Background

The Guardian and ITN, which produces news programmes for ITV, Channel 4 and Channel 5, are trying to publish allegations of the man's "abuse of power and status" to contact young women to engage in "inappropriate sexual activity, including potential criminal activity". As part of their investigation they spoke to over 100 individuals, including alleged victims. 

The media wrote to the man to let him know about their intended publications (a documentary and several articles) and to give him a chance to respond to the allegations. He argued that the notification and prospect of publication of the allegations have caused his mental health to seriously deteriorate. 

The "well-known public figure" has denied the allegations and applied for the injunction mainly on the basis of his own risk to his life. His lawyers argued he has twice attempted to end his life, and publication of the allegations would be likely to lead to a further attempt. They argued that under Article 2 ECHR, which protects the right to life and Article 3 ECHR, which prohibits torture, inhumane or degrading treatment, the British state has a duty to protect the man by preventing the publication. They also relied on Article 8 ECHR, the right to privacy and family life, for both the man and his son. 

The Guardian and ITN argued that granting the injunction would be an expansion of the current law. They said the State's responsibilities to the man under Articles 2 and 3 should remain with his team of medical professionals. ITN and The Guardian said their journalists have spoken to over 100 people who know the man as part of their investigation. They argued the impact on these sources had not been sufficiently considered, as many of these had suffered lasting effects as a result of the man's alleged behaviour. They argued there was a clear and strong public interest in publishing the allegations, which they said were made after "a wide-ranging and rigorous investigation" and outweigh the man's Article 8 rights. 

The Psychiatric Risk

Almost half of the judgment was given to a thorough consideration of the man's mental health, and particularly his risk of suicide. The man did not provide his own witness statement for evidence. However his personal assistant, publicist and solicitor each provided statements. There were also extensive medical records, messages and supporting documents submitted and considered by the Judge. Significant points were that PPT has suffered with mental health problems for a long time, has a serious diagnosis and has had both voluntary and compulsory psychiatric admissions to protect him. Just before the trial he was admitted to an inpatient facility to manage his suicide risk. Both sides also agreed to an assessment of the man by an independent consultant forensic psychiatrist, but there was disagreement on the outcome of that assessment. 

Having considered all the evidence, the Judge found that PPT does have a genuine and grave risk of suicide and that risk is closely connected to the Court's decision on the injunction and possible publication of the allegations. Although he decided that suicide was not an inevitable consequence of publishing the allegations, the Judge said such publication would create a real and immediate threat of this. 

Article 2: Right to Life

Article 2 protects one's right to life. The Judge confirmed that for the Article 2 right to apply, a real and immediate risk to life is necessary but not sufficient on its own. Publishing the allegations would substantially increase the man's risk of suicide, meeting the threshold for a risk to life. However, the key question was whether the Court has responsibility for protecting the man against that risk by stopping the publication. The Judge held that the psychiatric hospital and mental-health services have assumed responsibility for the man's immediate safety, although even they are not required to guarantee that suicide will not occur. 

As there was no positive duty on the Court to protect the man from suicide in these circumstances, the claim based on Article 2 was dismissed. 

Article 3: Protection from Torture, Inhumane or Degrading Treatment

Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. It can apply to severe mental suffering. The Judge accepted that although publishing the allegations would cause the man "acute and potentially prolonged mental suffering", the suffering was a result of his psychiatric condition. He held that the publication of the allegations would not constitute "treatment" for the purposes of Article 3. The Judge also said that the psychiatric services being provided to the man were the "reasonable and institutionally appropriate response required of the State". 

The Judge noted, for the same reasons that he applied under Article 2, that to assert an Article 3 obligation on the Court to prevent the man's suffering by stopping the publication, would establish a new principle of European Convention law. 

The claim under Article 3 was therefore dismissed. 

Convention Rights Only Injunction Rejected

The Judge confirmed that although the Court has the power to grant an injunction, it is not a "free-standing" power. He stated that the power must be exercised alongside a domestic cause of action, such as misuse of private information or defamation. None of these claims were argued by the man in relation to any of the ECHR rights relied on. In particular, the Judge said that extending the Article 2 or 3 duty in these circumstances would restrain publishers even where there wasn't a legal basis, such as breach of confidential information. 

Article 8: Right to Respect for Private and Family Life

Article 8 protects the right to respect for private and family life. It includes a person's psychological integrity and enjoyment by a parent and child of each other's company. 

The Judge dismissed this claim by the man, mainly because there was no domestic cause of action in relation to the publication between the parties. As with the Article 2 and 3 claims, the man had not advanced any legal basis such as defamation, breach of confidence or data protection. The Judge said that describing the consequences of publication, rather than the information itself, as interfering with the Article 8 right did not get around that problem.

Even if that was the wrong conclusion, the Judge considered, alternatively, the balance between the Article 8 right and the rights protected by Article 10 ECHR (freedom of expression). The Judge said that granting the injunction would be "an exceptionally serious interference" with Article 10 rights, as it would prevent the media from publishing the results of their investigations into allegations of serious wrongdoing by a prominent individual. 

The Judge also noted that:

• the planned publications concerned matters of substantial public interest;
• the restriction under an injunction would restrain publication of a wide breadth of material and not just be for a limited time;
• the information to be published was not alleged to be private; 
• there was no evidence put forward in relation to PPT's son's position and rights (although the Judge did acknowledge "grave" consequences for the son from a decline in the man's mental health); and
• there was nothing to show that the investigation lacked a proper evidential basis or that the proposed publications would make no genuine contribution to public debate.

The Article 8 claim was also dismissed. 

What happens now? 

The man was granted permission to appeal to the Court of Appeal. Until he either files a notice of an appeal or the deadline passes, the reporting restrictions remain in place and he cannot be named. If he does not appeal and the planned documentary and articles go ahead, there may be alternative legal options he may explore after publication. 

The Judge highlighted that the trial did not consider or decide on the truth of the allegations. So the dismissal of the application does not mean the allegations in the intended publications are true. 

Social Media

Social media and online forums are flooded with rumours and theories about who PPT could be. The Judge insinuated to the difficulty of containing these. However, he emphasised at the beginning of his judgment that even if a name is speculated about on social media, that does not authorise anyone to breach the current order in place by publishing any information that identifies the man. 

The case highlights the difficulty of injunctions in the modern media age. Information posted on social media by individual users can quickly gain traction before it has been fact-checked and can be difficult to police. 

Key Takeaways

The judgment confirmed that, in these circumstances, the Court is not the State body responsible for protecting the man's ECHR rights and there is no obligation on it to prevent the publication on that basis. 

The judgment provides useful clarity on the power the Court has to grant injunctions. Subject to an appeal, the decision makes clear there is no free-standing "European Convention rights only" injunction available. A claimant must always plead an established domestic cause of action such as defamation, harassment or breach of confidence. 

For publishers, the judgment shows the in-depth balancing exercise the Court will carry out when there is a proposed restriction upon freedom of expression. It highlights the importance of a comprehensive approach to any investigation for that balancing exercise. The media's evidence of a thorough investigation, including sources that were interviewed repeatedly and substantial corroborative material, all of which had been subject to extensive editorial and legal scrutiny, was effective here to outweigh the man's Article 8 rights. The media had also argued that they had not disregarded the man's psychiatric risk once they were made aware of it. They had obtained medical advice on it, proposed the assessment by an independent psychiatrist, repeatedly gave the man more time to respond to the allegations, requested updates on his condition and allowed protective medical care to be put in place for him. All of which demonstrated responsible and considerate journalism in the circumstances.