Interim injunctions and competing public interests (Attorney General v BBC)

In Her Majesty's Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 826 (QB), an interim injunction has been granted in favour of the Attorney General (AG) to restrain the BBC from broadcasting the identity and image of an alleged covert human intelligence source for MI5 (known only as ‘X’) who is accused of being abusive to two former partners and using his position with MI5 to terrorise and control one of the women. The injunction was granted on the basis that, while it "represented a very significant interference with the right of the BBC to freedom of expression and the correlative right of the public to receive the information the BBC wishes to publish" [23], such a measure was necessary in order to prevent a real and immediate risk to X’s life or safety, as well as the potential wider impact of publication on national security. 

Background 

The Attorney General sought an interim injunction to prevent the BBC from broadcasting a programme about ‘X’, a covert human intelligence source (CHIS) for MI5 who has been accused of being a dangerous extremist who physically abused two female partners, and that X had told one of these women he worked for MI5 in order to control her.

The injunction was sought on the grounds that:

• it was necessary to protect X’s rights under Articles 2, 3, and/or 8 of the European Convention on Human Rights (ECHR)
• disclosing X’s name or image would give rise to a real and immediate risk that X would be killed or subject to serious physical harm. If the application for an injunction was refused, the Security Services would need to deploy extensive protective measures to protect X’s life and safety and those measures themselves would have a substantial impact on X’s Article 8 ECHR rights
• such a disclosure would also cause real damage to national security as individuals considering becoming CHIS would reconsider if they thought their identities might be disclosed

The BBC argued that:

• an injunction would infringe its Article 10 rights, as well as those of the women who had provided information to the BBC
• there is a relevant public debate on coercive control and MI5’s role in potentially preventing the actions of X
• the court should bear in mind the rights and interests of the women who would or might be protected by being made aware of the allegations against X

The court sat in private and heard from ‘Special Advocates’ with national security clearance to hear evidence relating to those sensitive issues, with the remainder of the proceedings being heard in public.

What did the court decide?

Mr Justice Chamberlain accepted that the relief would prevent publication by a responsible broadcaster of facts which would contribute to a debate on matters of legitimate public concern but that there is ample support in the authorities that informants play a vital role in maintaining national security, and that disclosure of their identity undermines their ability to work effectively.

There is conflicting case law on whether a balancing exercise need be carried out between Article 2 and/or 3 and Article 10 where it has been established that Article 2 and/or 3 is engaged. The court assumed in the BBC’s favour and conducted a balancing exercise in the absence of detailed argument.

In considering that balance, the court was satisfied that the AG had provided cogent evidence that the disclosure of X’s identity would expose him to a ‘real and immediate risk’ of death or serious injury. If disclosure were permitted, the protective measures which would be undertaken by the Security Services would undermine the protective effect that disclosure of X’s identity would have on women considering a relationship with X. In any event, the chances that the broadcast would protect those women was likely to be small. The grant of relief would not materially increase any danger that X poses to women, either.

The court therefore held that the AG was more likely than not to succeed at trial in establishing the balance of interests favours the grant of relief. While the AG had previously sought an injunction prohibiting broadcast of the facts alleged at all, by virtue of an earlier judgment, extensive facts had already been made public and such a position was no longer tenable. The court noted that:

"an injunction which restrains a media organisation from exercising the right of freedom of expression should be narrowly tailored, and, where possible, should precisely identify the information whose publication is prohibited." [87]

What are the practical implications of this case?

While the court ultimately restricted publication, this ruling provides some helpful commentary for media publishers seeking to ensure that their Article 10 rights prevail:

• national security itself is not sufficient to pre-determine the grant of relief; the executive must convince the court that the elements of the cause of action are present and that the balance of public interest favours the grant of relief. There may be cases where the public interest in national security is outweighed by other competing rights, particularly where the grant of relief could itself cause a risk to the safety of the public
• it is not sufficient for applicants to seek to prove the allegations are untrue; in a breach of confidence action, the court will not be concerned with the truth or falsity of the allegations which are the subject of proposed restraint. However, a party claiming that publication of confidential information is in the public interest must in general show that the allegations it seeks to publish and the criticisms it seeks to advance are serious and have a credible evidential basis
• the court must consider not only whether the publication of the information is in the public interest, but also whether it is in the public interest that the duty of confidence should be breached

Publishers should bear in mind that the fact that an individual disclosed the confidential information to a third party does not necessarily diminish the quality of confidence; the disclosure to one person is different from disclosure to the world at large. Such a disclosure is also unlikely to have a significant impact on the assessment of the risk to life as a result of publication.

This article was first published by LexisPSL on 11 April 2022