Qualitative and quantitative publication:

The most interesting aspect of this decision is perhaps the Court’s interpretation of section 12(4)(a)(i) of the Human Rights Act 1998. s the impact injunctions have on the freedom of expression. Judges are required to consider the extent to which the material has, or is about to, become available to the public. Lord Mance (with whom the majority agreed) held that this provision:

“does not preclude a court, when deciding whether to grant or lift conjunctive relief, from having regard to both

a) the nature of the journalistic material involved and the medium in which it is, or is to be, expressed, and

b) the extent to which it is already available in that medium and the extent to which steps are being or can be taken to remove or limit access to any other publication in that or any other medium:” [Manchester Taxi number].

This interpretation of “extent” in section 12(4)(a)(i) ties into the Court’s emphasis on looking beyond the quantitative extent of the availability of the information and to consider the qualitative nature of the intrusion associated with the making public of information in different formats.

Lord Mance stated that the Court of Appeal had made an error of law by too closely assimilating the tort of invasion of privacy with a breach of confidence when it stated that “a claim for misuse of private information can and often will survive when information in is in the public domain.  It depends on how widely known the relevant facts are“.