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Cite as: [2001] EWHC Ch 412

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Mills v. News Group Newspapers Ltd [2001] EWHC Ch 412 (4th June, 2001)



HC 0102236


Royal Courts of Justice
London WC2A 2LL

Monday, 4 June 2001




Heather Mills



News Group Newspapers Limited



(Approved by the Court for handing down)

Mr Michael Tugendhat QC and Mr John Critchley (instructed by Sheridans) appeared on behalf of the claimant
Mr Richard Spearman QC (instructed by Farrer & Co) appeared on behalf of the defendant

Hearing: 31 May 2001

Mr Justice Lawrence Collins:

I Introduction

1. Ms Heather Mills, a well known and successful model, was, in 1993 severely injured in an accident. Subsequently she has become very well known for overcoming the disability caused by the accident and carrying out charity work. Since 1999 she has been publicly associated with Sir Paul McCartney.

2. She has contracted to buy a property in Hove, on which completion was due on Friday, June 1, 2001. In view of a number of very disturbing e-mails she has received, and in the light of the circumstances surrounding the death of John Lennon, and the attack on George Harrison, she is anxious to ensure that details of her address are not given public circulation, since she fears that she might be subject to physical threats or even injury. She has bought the property under an alias, and she has obtained an injunction without notice against the publishers of The Sun newspaper to restrain publication of material which might identify her new address. This judgment is given following a hearing in which both parties were represented.

II The background

3. On May 24 Ms Mills was contacted by one of the vendors of the property, who told Ms Mills that they had been visited by reporters from The Sun inquiring as to whether she was to be the new owner of the property, and that photographs were taken. It is Ms Mills' belief that the information might have been disclosed by workmen, and she has no reason to suspect that it was disclosed by the vendors.

4. The press had previously published details of her existing address and other previous addresses which, she says, had caused her considerable anxiety. Accordingly she instructed her solicitors to contact the editor of The Sun, David Yelland, to seek an undertaking that The Sun did not intend to publish any photograph or otherwise give details sufficient to identify the property as her intended residence.

5. In the course of the evening of May 24, there were a number of communications between her solicitors, Messrs Sheridans, and The Sun. According to Mr Yelland, his office received a telephone call from Mr Taylor of Messrs Sheridans, who told Mr Yelland's personal assistant that he knew that The Sun was working on a story concerning Ms Mills and Sir Paul McCartney buying a house, and that if they were working on the story, The Sun could not run it. Mr Yelland and his personal assistant had no knowledge of such a story, and checked with the news desk editor, Mr Dudman, who confirmed that one of the journalists on The Sun, Mr Thomas Whitaker, had been carrying out some research on the proposed purchase of the property in question.

6. The evidence of Mr Whitaker in these proceedings was that what had happened was that a woman had told The Sun that she had information that Ms Mills was buying a house, and that person had learned the information from a friend who lived nearby. Mr Whitaker had been asked by the news desk to travel to the area to speak to the woman, who told her that Ms Mills was buying a house in the street in question, and she named the current owner. He visited the house and asked the owner whether it was true that Sir Paul McCartney and Ms Mills were buying the house. He said that he could not comment because until they completed the contract they were told not to say anything, and he did not want to disturb delicate negotiations. The reporter's evidence was that he did not take any photographs.

7. Because of the good relationship of the newspaper with Sir Paul McCartney and his publicist, Mr Geoff Baker, Mr Yelland says that he decided in conjunction with Mr Dudman not to run the story. Mr Yelland says that he then telephoned Mr Taylor and said that Mr Taylor might have been misled by his PA, since in fact The Sun had been looking at a story about Ms Mills and Sir Paul purchasing the house, but that he did not intend to run the story. He said that Mr Taylor was aggressive, and continued to demand that he signed and sent back an undertaking confirming that the paper would not be publishing the story. Mr Yelland told him that he would publish the story or reserve his right to publish the story in the event that it was published elsewhere. Mr Yelland says that he lost his temper and told Mr Taylor that everyone in the area would know that Ms Mills and Sir Paul were there once they had purchased the property, and therefore that it was highly likely that the story would come out in any event. Mr Yelland denies that he accepted that the information was confidential, and Mr Taylor denies that he was aggressive in manner.

8. At around the same time as these conversations were taking place, Messrs Sheridans faxed a letter to Mr Yelland, to ask for confirmation that the paper would not publish the address and/or a photograph and/or a description of the property in breach of the Code of Practice of the Press Complaints Commission ("PCC"), and reserved their client's right to apply to the court for an injunction. Following the conversation between Mr Taylor and Mr Yelland, Mr Taylor wrote to confirm that Messrs Sheridans had asked Mr Yelland to confirm in writing that he would not publish the details referred to in the earlier fax, and that Mr Yelland had confirmed that he was aware of the story and said that he would not publish it but would not confirm this in writing because he thought that other newspapers would run with the story, and that were others to publish he could not guarantee that The Sun would not publish by way of "secondary publication." Messrs Sheridans asked for immediate confirmation that The Sun would not undertake publication given that they were notifying the Press Association and other newspapers individually of their concerns.

9. Because, as Mr Yelland says, he was so cross with Mr Taylor, he wrote a letter to Messrs Sheridans, which he now accepts was "intemperate." I quote the relevant parts, because the newspaper relies on it to show that its consistent position has been that it is not proposing to publish the information, and because Ms Mills relies on it to show that that expression of intention is highly qualified. Mr Yelland said:

"...I have told you on the phone that I will not run the story. I believe I could run it within the PCC Code but I have decided not to out of respect for Heather and Paul. Instead of thanking me you have written me yet another unfriendly, legalistic letter which makes me tempted simply to put the story in the paper anyway. I have just talked to Geoff Baker, who has advised Paul on public relations for many years, and is a friend of the paper. I told him that I'd agreed not to run the story and I also told him that in my view the behaviour of Sheridans has been terrible. I believe he will be talking to Paul tomorrow. Geoff is delighted that we are not running the story and said he would be discussing that with Paul. Do you really expect the fact...not to emerge in any paper? Do you really think that every other newspaper Editor is going to be as considerate as me in not running this story? ...I made this decision not to publish the story and am very angry to have received a second letter demanding that I put something in writing. You have no right to ask me to do that...IF YOU SEND ME ANY MORE LETTERS OR THREATEN ME IN ANY WAY I RESERVE THE RIGHT TO CHANGE MY MIND AND PRINT THE STORY TO TEACH YOU A LESSON. AND FURTHERMORE IF YOU GO ROUND FLEET STREET WARNING EDITORS NOT TO RUN THE STORY YOU ARE MERELY TELLING THEM ABOUT IT. IN OTHER WORDS YOU ARE SHOOTING YOURSELVES IN THE FOOT...".

10. At 10.42 p.m. Mr Justice Etherton granted an injunction restraining publication, and The Sun was notified of this by telephone at about 10.50 p.m. On Saturday, May 26 The Sun published articles criticising Ms Mills' action in obtaining an injunction.

III The contentions of the parties

11. Mr Tugendhat QC, for Ms Mills, argues (a) the address of her intended residence is confidential, and is likely to have been disclosed by a person in a relationship of confidence with her, although no such relationship is necessary in law for a breach of confidence to be actionable; (b) notwithstanding the newspaper's right to freedom of expression (including the imparting of information) under Article 10 of the European Convention on Human Rights ("the Convention"), for the court not to protect that confidence would violate her right to respect for her private life and home under Article 8; (c) the court has jurisdiction to protect her interest in the information about her whereabouts and her intended or actual residence, either on the basis of the law of confidence, or on the emerging law of privacy, in particular where there is a real risk of interference with private life; (d) an injunction is an appropriate remedy because Ms Mills would be at risk of material interference with her private life if it were not granted, and is a justifiable interference with the newspaper's freedom of expression; (e) the threshold for the interim injunction is that the claimant has a real possibility of success at trial, and the grant of interim relief is justified because (i) the editor cannot be relied upon not to publish the information or comply with the PCC Code of Practice; (ii) there is no public interest in the publication of the information; (iii) the PCC Code and the practice under it protects the confidentiality of a person's address, as does legislation and practice in important areas such as data protection law and electoral law; (f) it is no bar to the grant of relief that the information may be known already to some members of the public, or that it may become known.

12. The position of Mr Spearman QC, for the newspaper, is as follows: (a) an injunction is inappropriate, since the newspaper has no intention of publishing the information unless it reaches the public domain through other means; (b) Ms Mills has caused or permitted to be placed in the public domain a considerable amount of detail about what would otherwise form part of her private life, including details of her homes; (c) a claim in confidence affords no basis for an injunction to restrain use of information which is generally accessible and/or is trite and trivial and/or is already in the public domain; (d) the injunction obtained and sought to be continued is so wide that persons who would be subject to it would not know what was or was not permitted to be published; (e) there is no separate claim to privacy, but in any event neither a claim in privacy or one based on Article 8 of the Convention add anything to the claim in confidence; (f) any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved, and no such compelling consideration has been put forward; (g) in particular there is very little evidence of the threatened harm which might flow from publication; (h) the threshold for an injunction is likelihood of success at trial, which means more than a real possibility of success; (i) the injunction remedy would be disproportionate; (j) it is not legitimate to seek to obtain an injunction to restrain a party which has indicated that it will only publish if others publish, if the object is indirectly to restrain those others.

IV Freedom of expression and the European Convention on Human Rights

13. This is an application for an interim injunction to restrain publication of information about the location of Ms Mills' residence. Since the Human Rights Act 1998 came into force on October 1, 2000 the starting point is section 12 of the Act, which provides:

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.


(3) No such relief is to be granted so as to restrain publication before a trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-

(a) the extent to which-

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.


14 The right to freedom of expression of the press and its readers is protected by Article 10 of the Convention, and by the common law. Article 10 provides:

"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

(2) The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ..."

15. It is hardly necessary to repeat the frequent and authoritative expressions of the importance of a free press and freedom of speech. In Reynolds v. Times Newspapers Ltd [1999] 3 WLR 1010 the House of Lords stressed that there is a basic and fundamental right to freedom of expression, that freedom of expression would be buttressed by section 12 of the Act, and that when the Act was fully in force the common law would have to be developed and applied in a manner consistent with Article 10. To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved; and the interest of a democratic society in ensuring a free press weights heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment: see Lord Nicholls at 1023. Freedom of expression is the rule and regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need: Lord Steyn at 1029-1039. See also McCartan Turkington & Breen v. Times Newspapers Ltd [2000] 3 WLR 1670, 1686 (H.L.), where Lord Steyn said that the European Convention fulfilled the function of a Bill of Rights; and R v. Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115, 126.

16. Hoffmann L.J. said in R v. Central Independent Television plc [1994] Fam 192, 202-204:

"The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right-thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute..."

V Prior restraint and section 12 of the Human Rights Act 1998

17. The consequence of the combination of Article 10 and section 12 is as follows: (a) Article 10 is directly applicable as between the parties to private litigation: see Douglas v. Hello! Ltd. [2001] 2 WLR 992, at 1027, para. 133 per Sedley L.J.; (b) an injunction should not be granted to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed; (c) the court must have regard to the importance of the Convention right to freedom of expression; (d) where the proceedings relate to journalistic material the court must have particular regard to the extent to which the material has, or is about to, become available to the public, or to which it is, or would be, in the public interest for the material to be published, and must also have regard to any relevant privacy code.

18. Section 12(3) makes it clear that the applicant must show more than the American Cyanamid threshold of a serious issue to be tried. In Douglas v. Hello! Ltd. Sedley L.J. said (at 1028, para. 136):

"It will be necessary for the court, in applying the test set out in section 12(3), to bear in mind that by virtue of section 12(1)(4) the qualifications set out in article 10(2) are as relevant as the right set out in article 10(1). This means that, for example, the reputations and rights of others—not only but not least their Convention rights—are as material as the defendant's right of free expression. So is the prohibition on the use of one party's Convention rights to injure the Convention rights of others. Any other approach to section 12 would in my judgment violate section 3 of the Act. Correspondingly ... 'likely' in section 12(3) cannot be read as requiring simply an evaluation of the relative strengths of the parties' evidence. If at trial, for the reasons I have given, a minor but real risk to life, or a wholly unjustifiable invasion of privacy, is entitled to no less regards, by virtue of article 10(2), than is accorded to the right to publish by article 10(1), the consequent likelihood becomes material under section 12(3). Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights. It will be remembered that in the jurisprudence of the Convention proportionality is tested by, among other things, the standard of what is necessary in a democratic society. ... If freedom of expression to be impeded, in other words, it must be on cogent grounds recognised by law."

19. Keene L.J. said (at 1032, para. 150):

"... [Section 12(3)] is simply dealing with the interlocutory stage of proceedings and with how the court is to approach matters at that stage in advance of any ultimate balance being struck between rights which may be in potential conflict. It requires the court to look at the merits of the case and not merely to apply the American Cyanamid test. Thus the court has to look ahead to the ultimate stage and to be satisfied that the scales are likely to come down in the applicant's favour. That does not conflict with the Convention, since it is merely requiring the court to apply its mind to how one right is to be balanced, on the merits against another right, without building in additional weight on one side."

20. Brooke L.J. said (at 1007, para 55):

"Needless to say, following Lord Fraser's speech in NWL Ltd v Woods [1979] 1 WLR 1294, if there is a very strong likelihood that the claimant will establish that an article 10(2) justification will succeed at trial this will represent a powerful reason why the court should exercise its discretion to grant an interim injunction to restrain publication."

VI Breach of confidence and privacy

21. Ms Mills' case is put primarily on the ground of breach of confidence. Although it may be somewhat artificial to classify the address of a person as confidential information, her case is put on the basis of breach of confidence for two main reasons. The first is that the traditional view in England has been that there is no separate cause of action for invasion of privacy in English law. The second reason is that the orthodox view is that in general the rights in the Convention, as incorporated by the 1998 Act, and in particular Article 8, do not justify the creation of new causes of action to give effect to them where the common law or statute law is deficient: see Venables v. News Group Newspapers Ltd. [2001] 2 WLR 1038, 1048-9, 1075, paras 24-25, 111; cf. Douglas v. Hello! Ltd, at 1026, para 129, per Sedley LJ.

22. The English courts have not, unlike the American courts which applied and developed the views expressed by Warren and Brandeis in their famous article in the Harvard Law Review in 1890 (vol.4, p.193), developed a separate right of privacy prohibiting unreasonable and offensive intrusion on the interest of a person in solitude or seclusion, or objectionable publicity of private information about a person. In the notorious case of Kaye v. Robertson [1991] FSR 62, 70, where a newspaper reporter and photographer had invaded the hospital room where the plaintiff was recovering from serious head injuries, Bingham L.J. said that the case highlighted the failure of both the common law and statute to protect in an effective way the personal privacy of individuals.

23 But the day may not be far off when this deficiency will be remedied. In Douglas v. Hello! Ltd., at 1025, paras. 125-6,Sedley LJ said:

"I would conclude, at lowest, that Mr Tugendhat has a powerfully arguable case to advance at trial that his two first-named clients have a right of privacy which English law will today recognise and, where appropriate protect. To say this is in my belief to say little, save by way of a label, that our courts have not said already over the years. ...

What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy."

Cf. Brooke L.J., para. 95; Keene L.J., paras. 165-167.

24. In several areas the courts have been able to remedy the absence of a law of privacy by the remedy for breach of confidence (see, e.g. Duchess of Argyll v. Duke of Argyll [1967] Ch. 302; Stephens v. Avery [1988] Ch. 449) or by orders made under the wardship jurisdiction (Re X (A Minor) (Wardship: Injunction) [1984] 1 W.L.R. 1422 (the Mary Bell case)). See also Kaye v. Robertson [1991] FSR 62, where the injunction was granted to prevent the malicious falsehood that Mr Kaye had voluntarily given an interview.

25. Information which has entered the public domain is not subject to confidentiality. But all that means is that there may be circumstances in which the information is so generally accessible that, in the circumstances it cannot be regarded as confidential: see Att. Gen. v. Guardian Newspapers (No. 2) [1990] 1 AC 109, 281, per Lord Goff of Chieveley. So the fact that information may be known to a limited number of members of the public does not of itself prevent it having and retaining the character of confidentiality, or even that it has previously been very widely available: see, e.g., Stephens v. Avery, at 454; R. v. Broadcasting Complaints Commission, ex parte Granada Television Ltd. [1995] E.M.L.R. 163, 168; Creation Records Ltd. v. News Group Newspapers Ltd. [1997] EMLR 444, 456. In such cases restraining further dissemination of the confidential material may be justified to prevent harm: Att. Gen. v. Guardian Newspapers (No.2), at 260, per Lord Keith of Kinkel.

26. In the present case Ms Mills seeks to restrain the publication of her address, or information which would reveal it. There is no evidence that the newspaper has learned of it from or through some person who learned of it through some confidential relationship or transaction. But it is no longer a necessary element of the cause of action that the information arises from a confidential relationship. In the important decision in Venables v. News Group Newspapers Ltd. [2001] 2 WLR 1038 Dame Elizabeth Butler-Sloss P. held that the court had jurisdiction to restrain the publication of material about Venables and Thompson, the killers of Jamie Bulger, to protect information about their identities and whereabouts, because the disclosure of the information would have disastrous consequences for them, including the real and strong possibility of serious physical harm and death. Plainly information of that kind would not normally be imparted in conditions or under terms of confidentiality, but that was no bar to the basis of the injunction being the law of confidentiality. The President said (at 1064-5, paras. 80-81):

"I am satisfied that, taking into account the effect of the Convention on our law, the law of confidence can extend to cover the injunctions sought in this case and, therefore, the restrictions proposed are in accordance with the law. There is a well-established cause of action in the tort of breach of confidence in respect of which injunctions may be granted. The common law continues to evolve, as it has done for centuries, and it is being given considerable impetus to do so by the implementation of the Convention into our domestic law.

The duty of confidence may arise in equity independently of a transaction or relationship between parties. In this case it would be a duty placed upon the media. A duty of confidence does already arise when confidential information comes to the knowledge of the media, in circumstances in which the media have notice of its confidentiality. ... It is also recognised that it is just in all the circumstances that information known to be confidential should not be disclosed to others, in this case by publication in the press: see Lord Goff in Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109. The issue is whether the information leading to disclosure of the claimants' identity and location comes within the confidentiality brackets. In answering that crucial question, I can properly rely upon the European case law and the duty on the court, where necessary, to take appropriate steps to safeguard the physical safety of the claimants, including the adoption of measures even in the sphere of relations of individuals and/or private organisations between themselves. Under the umbrella of confidentiality there will be information which may require a special quality of protection. In the present case the reason for advancing that special quality is that, if the information was published, the publication would be likely to lead to grave and possibly fatal consequences. In my judgment, the court does have the jurisdiction, in exceptional cases, to extend the protection of confidentiality of information, even to impose restrictions on the press, where not to do so would be likely to lead to serious physical injury, or to the death, of the person seeking that confidentiality, and there is no other way to protect the applicants other than by seeking relief from the court"

27. Consequently there is jurisdiction to restrain a newspaper from publishing the address of a person in certain circumstances. That is not simply because the mere publication of an address is a breach of confidence, or because the publication of an address is in itself an unwarranted invasion of privacy. As the Venables case shows, one of the necessary additional elements may be the risk of injury or death to the person involved. So also the practice of the PCC in applying the privacy provision of its Code of Practice (clause 3) indicates that the rationale for prohibiting newspapers from publishing the address of the home of a celebrity (or material which might enable people to find its whereabouts) is not simply that the address is protected information, but that celebrities have problems with stalkers (Complaint by a well known entertainer, complaint dated July 16, 2000) or the person involved may be "potentially vulnerable" (Complaint of Mrs Renate John, adjudication, 2000).

28. Clause 3 of the PCC Code of Practice provides (in part) that "everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent." This is plainly based on Article 8 of the Convention, which provides

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

29. Although Article 8 of the Convention is not directly applicable in England in the sense of creating new causes of action, the English court (a) must in determining a question which has arisen in connection with a Convention right take into account, inter alia, the decisions of the European Court of Human Rights (1998 Act, s.2(1); (b) because it is a public authority (s.6(3)(a)), must not act in a way which is incompatible with a Convention right. In particular, Article 10(2) provides that freedom of expression may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for, among other matters, (a) "the protection of the reputation or rights of others," and that must include Convention rights such as Article 8 when being given effect by such means as the law of confidentiality; and also (b) "for preventing the disclosure of information received in confidence."

30. The European Court of Human Rights has emphasised that the national court has to strike a fair and proportionate balance between the respective Convention rights, depending on such factors as the nature and seriousness of the interests at stake and the gravity of the interference: Z v. Finland (1997) 25 E.H.R.R. 371. That is part of the process which the English court must undertake when applying section 12(3) of the 1998 Act. In Douglas v. Hello! Ltd. Sedley L.J. emphasised (at 1028, para. 136) that the qualifications in Article 10(2) are as relevant as the basic right of freedom of expression in Article 10(1), so the rights of others are as material as the defendant's right of free expression, as is the prohibition on the use of one party's Convention rights to injure the Convention rights of others. See also Keene L.J., 1032, para.150. There must be a reasonable relationship between the curtailment of freedom of speech and the purpose of the curtailment.

31. One of the matters which the court must take into account in deciding whether prior restraint is justified is "any relevant privacy code." The PCC Code of Practice is clearly such a code. In Douglas v. Hello! Ltd. Brooke LJ said (at 1018, paras.92-94):

"... the Code of Practice ratified by the Press Complaints Commission in November 1997, which states that all members of the press have a duty to maintain the highest professional and ethical standards, and that the code sets the benchmarks for those standards: 'It both protects the rights of the individual and upholds the public's right to know.'

The code covers 16 discrete topics, the third of which is 'Privacy'. This is one of the topics where the code makes clear that there may be exceptions to the rules set out in the code where they can be demonstrated to be in the public interest. This phrase is said to include (i) detecting or exposing crime or a serious misdemeanour; (ii) protecting public health and safety; and (iii) preventing the public from being misled by some statement or action of an individual or organisation. The rules on privacy are disarmingly simple:

'3. Privacy (i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent; (ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note—Private places are public or private property where there is a reasonable expectation of privacy.'

It appears to me that the existence of these statutory provisions, coupled with the current wording of the relevant privacy code, mean that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. A newspaper which flouts clause 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by article 10(2) considerations of privacy. Unlike the court in Kaye v Robertson [1991] FSR 62, Parliament recognised that it had to acknowledge the importance of the article 8(1) respect for private life, and it was able to do so untrammelled by any concerns that the law of confidence might not stretch to protect every aspect of private life.

It follows that on the present occasion it is not necessary to go beyond section 12(3) of the 1998 Act and clause 3 of the Press Complaints Commission's code to find the ground rules by which we should weigh the competing considerations of freedom of expression on the one hand and privacy on the other."

VII Conclusions

32. It follows from what I have said above that the court has to be satisfied, if it is to restrain publication before trial, that the claimant is likely to establish that publication should not be allowed. The newspaper has the right to freedom of expression. That includes the right to impart information, and it has that right even if the information is little more than gossip of a trivial nature. Ms Mills has the right to respect for her private life and her home, which the court must uphold. The court does have jurisdiction to grant an injunction in an appropriate case to restrain publication if the balancing operation requires that considerations of confidentiality and privacy require it, but the court must pay particular regard to the importance of the Convention right to freedom of expression, and also to the extent to which the material has, or is about to, become available to the public, or to which it is, or would be, in the public interest for the material to be published, and finally to any relevant privacy code.

33. It is not suggested by the newspaper that it is, or would be in the public interest for the information to be disclosed, as distinct from being of interest to the public. It is not for the court to act as an arbiter of public taste, but I can take into account the relatively trivial character of the information, against the serious consequences which Ms Mills says may flow if the information is made generally available.

34. The newspaper relies on the fact that Ms Mills has for several years courted publicity, and has herself stimulated public interest in her life-style, sex life, and her homes. I accept that much of this pre-dates her friendship with Sir Paul McCartney, and I take no account of it. I have no reason to doubt Ms Mills' sincerity in expressing her concerns about the adverse consequences which may flow from disclosure of her address or information which may lead to it being known, but the evidence which she puts forward for a real risk is very slight. She has received some e-mails of a most unpleasant nature. But the fact that she lives in Hove is well known to those who have an interest in such matters, and she has lived in the area for some time without disturbance, and the newspapers have published photographs of her present house. Since she became involved with Sir Paul McCartney in 1999, on March 22, 2000 the Daily Star published a photograph of the terrace in Hove in which had she bought a house, without identifying it, and on March 26, 2000 (in an article which identified Sir Paul as owning a farm near Rye) the Sunday Mirror published a photograph of her outside her new home, which it said was "a seaside home along the coast from the former Beatle", and stating that her new neighbours included a number of named celebrities in the world of television, music and sport. The street was not identified, although it is possible to infer the number of the house from the photograph. Readers of the Daily Mail on Saturday, April 28, will have been able to learn that these celebrities (among whom Ms Mills was also listed) lived in Hove, and to see photographs of their houses. She did not complain to the Sunday Mirror about the story.

35. It is not likely that she would have chosen her existing home, and especially her new home, if personal security were uppermost in her mind. Whether or not the information appears in the press, it will, at least to a limited extent, become available to the public, simply as a result of Ms Mills living in a busy and populous town. That is not in itself a reason for denying her a remedy, but it is relevant both in assessing the degree to which publication should be restrained, and the impact of publication on her privacy and security.

36. I also take into account the fact that the position of the editor, Mr Yelland, has consistently been that he will not identify the house in The Sun unless the material becomes public through being published in other newspapers. He made this clear both on the telephone and by letter to Ms Mills' solicitors. It has also been repeated to the court, although not as an undertaking. The court is, of course, not bound to treat such an assurance as determinative, and can take a realistic view of the behaviour of the tabloid press. But Mr Yelland's position is put on the plainly credible basis that he has far more to lose in his hitherto good relationship with Sir Paul McCartney than he has to gain by printing the information. I also take into account the fact that Mr Yelland is not proposing to flout the PCC Code, but says that he will abide by it.

37. Mr Tugendhat QC argues for Ms Mills that the fact that Mr Yelland threatens to publish if others publish is in itself a good reason for an injunction. In Venables v. News Group Newspapers Ltd. [2001] 2 WLR 1038, the President held (at 1071, para.100) that the court has jurisdiction to grant an injunction against the world in order to protect individuals from the criminal acts of others. This is a jurisdiction with a wider and more direct effect than the decision in Att. Gen. v. Times Newspapers Ltd. [1992] 1 A.C. 191 that newspapers which know of an injunction against another newspaper would, if they were to publish the information, be guilty of contempt. The rationale of that decision is that publication of the material by other newspapers would nullify the purpose of the proceedings against the defendant by putting into the public domain material which the applicant claimed should remain confidential, and they would be in contempt by impeding or interfering with the administration of justice. In my view, it would not be right to grant an injunction against the world on the Venables basis because in my judgment the balancing exercise, even excluding Mr Yelland's evidence that he does not propose to publish the information, would come out in the same way, particularly in view of the absence of evidence of the apprehended harm and the other matters to which I refer in paragraphs 34 and 35. It also seems to me to be in principle objectionable, otherwise than in an extreme case such as Venables, to base an injunction against the world on an action against a newspaper which credibly asserts that it has no intention of publishing.

38. Consequently, while I appreciate Ms Mills' concern, I do not consider that this is an appropriate case for an injunction. That does not, of course, mean that I am permitting, still less encouraging, publication by any newspaper. That should be apparent from the fact that I have taken into account Mr Yelland's assurance (qualified as it is) that he will not publish unless other newspapers do, and that he will abide by the PCC Code of Practice.

39. I have endeavoured to ensure that Ms Mills' house cannot be identified by anything I have said, and I propose to give this judgment in public. I will hear argument on whether the injunction should be extended pending any appeal, if permission to appeal is sought and obtained.


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