June 5, 2023
The claimants, husband and wife Richard and Sarah Stoute, owned and ran Full Support Health Care Ltd, which sells PPE to the NHS and private hospitals. During the Covid-19 pandemic, FSHL secured government contracts to deliver PPE worth about £2 billion.
In December 2022, the claimants applied for an interim injunction to restrain News Group Newspapers Ltd from publishing four photographs of: (i) the claimants’ second home in Barbados; (ii) the claimants’ boat in Barbados; (iii) Sarah Stoute on a public beach; and (iv) Richard Stoute on a public beach. The injunction was granted in respect of the first two photographs but was refused in relation to the third and fourth photographs.
In January 2023, News Group published articles about the claimants in the print and online editions of The Sun on Sunday newspaper, including the two photographs of the claimants on a public beach (the published photographs). The photographs of the house and boat were not published. The published photographs were the same as the photographs sent by News Group to the claimants the previous day, save that they were cropped in a different way. The published photographs showed the claimants from head to toe, whereas the photographs originally sent to the claimants showed them from waist height upwards only.
The claimants issued the claim form for, inter alia, misuse of private information in relation to the published photographs in January 2023. On the return date of the December 2022 interim order, the claimants also applied to restrain publication until trial of the published photos.
Mr Justice Johnson found that, overall, there was good reason to permit the claimants’ repeat application for an injunction because, inter alia, the published photos were not the same as the photos originally sent to the claimants. However, he refused the injunction for the second time, holding that the claimants were unlikely to establish at trial that they had a reasonable expectation of privacy in relation to the published photographs. The claimants appealed.
The claimants submitted that Johnson J had erred in law or principle because: (i) he had wrongly applied a presumption that events which took place in public were not private unless some additional element was present; and (ii) he had wrongly held that, because they had no reasonable expectation of privacy vis-à-vis other people present on the beach, they did not have any reasonable expectation of privacy in respect of the publication of photographs of them on the beach in a national newspaper.
Johnson J had noted that just because the claimants were in a public location at the time the photographs were taken did not necessarily mean that they had no reasonable expectation of privacy. However, he had said, to succeed there needed to be an additional “privacy” element to the situation that rendered the information private even though it had been obtained in a public pace (e.g. the subjects of the photographs were getting changed on a beach under a towel and the towel momentarily slipped).
In Lord Justice Arnold’s view, with whom the other Justices agreed, Johnson J had not erred because: (i) he had noted that a public location does not, of itself, mean there is automatically no reasonable expectation of privacy; and (ii) he had also said that in the absence of the additional “privacy” element, information that someone chooses to reveal in public is “less likely” to be private. Reading this, together with the judge’s self-direction that the question was “highly fact-sensitive” and bearing in mind that the judge had also considered other factors, such as the claimant being targeted by the paparazzi, Arnold LJ held that Johnson J had correctly applied the law.
Arnold LJ also dismissed the claimants’ second submission that Johnson J had failed to consider reasonable expectation of privacy in respect of publication of the photographs in a national newspaper as opposed to vis-à-vis other people on the beach. Arnold LJ found that considering what would have been visible to the public on the beach at the time was the correct approach to take, as shown by the authorities. Johnson J had also recognised that that was not determinative, Arnold LJ said. Further, publication of the photographs in a national newspaper was the context for the judge’s analysis and his judgment showed that he had plainly considered the impact of publication of the photographs in a national newspaper.
The claimants also submitted that Johnson J had given undue weight to some factors and insufficient weight to other factors, which Arnold LJ said was only a viable ground of appeal if it had resulted in the judge’s evaluation being outside the ambit of reasonable decisions open to him. In Arnold LJ’s judgment Johnson J’s decision was clearly one that was open to him on the facts of the case and the weight attached to each factor was a matter for him.
Accordingly, Arnold LJ found that Johnson J had made no error in concluding that it was unlikely that the claimants would be able to establish that they had a reasonable expectation of privacy in respect of the publication of the photographs. Even if he was wrong about that, however, he had made no error in concluding that the balance of the risk of injustice favoured the refusal of an injunction. The claimants submitted that Johnson J had failed correctly to apply PJS v News Group Newspapers Ltd  UKSC 26 as to the effect of further publication of material that has already entered the public domain. However, Arnold LJ said, the judge had in fact directed himself in accordance with PJS, finding that given that the photographs had been published three times in two national newspapers, both in print and online, the claimants would suffer little additional irreparable damage in the event of further publication and that the balance favoured refusal of an injunction. In Arnold LJ’s view, the judge had been entitled to make this finding. The appeal was dismissed. (Richard Stoute v News Group Newspapers Ltd  EWHC 232 (KB) (19 May 2023) — to read the judgment in full, click here).