On 27 October 2020 the first claimant, Aaron Wan-Bissaka, a footballer with Manchester United, and his partner, the second claimant, celebrated the birth of their baby. They had kept the pregnancy private to their family and close friends.

In December of the previous year, Mr Wan-Bissaka’s relationship with his former partner, Rhianna Bentley, had ended. On 18 October 2020 Ms Bentley posted the following on Instagram:

“Thank you to everyone who has supported mine & Aaron’s relationship the last three years. I wish nothing but the best for Aaron & @avril_uk for this week on welcoming their new bundle of joy ?? A new life is always a blessing ????x”.

@avril_uk was the second claimant’s Instagram account.

Ms Bentley had tagged the second claimant in the post meaning that it would have appeared in the timeline of the second claimant. As Mr Justice Nicklin explained, by so doing, Ms Bentley had directly addressed or targeted the message to the second claimant. The following day,19 October 2020, Ms Bentley posted a further message on Instagram consisting of a screen shot of private messages between her and Mr Wan-Bissaka during the currency of their relationship.

The claimants said that Ms Bentley’s Instagram post of 18 October 2020 had effectively announced to the world the expected birth of their child, which they had been keeping private. On 21 October 2020, the claimants’ solicitors wrote to Ms Bentley requesting undertakings not to publish any further information or material concerning her relationship with Mr Wan-Bissaka. In an email response sent the same day, Ms Bentley said, inter alia, that she had a “Human Right to have freedom of speech…”. On 22 October 2020, Ms Bentley posted a further message on Instagram stating, “I Will NOT Be Silenced!”.

On 6 November 2020 the claimants applied for an interim injunction to restrain Ms Bentley from publishing further private messages, including photographs, from the period of her former relationship with Mr Wan-Bissaka, and to prevent further harassment and further breaches of the claimants’ privacy. They relied on misuse of private information, breach of confidence, and harassment under s 1 of the Protection from Harassment Act 1997.

In relation to the misuse of private information claim, Nicklin J was satisfied that Mr Wan-Bissaka was likely to succeed at trial in showing that publication of the information in relation to previous relationship communications between him and Ms Bentley should not be allowed because:

i) on the basis of the Instagram posts there was a credible threat from her email on 21 October 2020, and the further Instagram post on 22 October, that Ms Bentley would publish more information, messages or photographs dating from the period of her former relationship with Mr Wan-Bissaka unless restrained by injunction; this information related to a sexual relationship and included messages exchanged between Mr Wan-Bissaka and Ms Bentley; in Nicklin J’s view, Mr Wan-Bissaka was likely to establish that he had a reasonable explanation of privacy in this information;

ii) although each case must be assessed on its own facts, the starting point was that there was not usually any public interest justification for disclosing purely private sexual encounters, or messages: PJS v News Group Newspapers Ltd [2016] AC 1081;

iii) it was difficult to assess the basis on which Ms Bentley had asserted a right to publish the private information, if that was what she had done; in her email of 21 October 2020, she appeared to suggest that the relationship was not a happy one; that, on its own, would not justify disclosure of other private facts; Ms Bentley had not provided the court with any further information; and

iv) in the ultimate balancing of any competing interest that might be advanced, on the evidence available, the Article 8 rights of Mr Wan-Bissaka were likely to prevail, and it was likely that he would obtain a final injunction to restrain further publication of the information identified.

In Nicklin J’s judgment, in respect of Mr Wan-Bissaka, the breach of confidence claim added nothing to the misuse of private information claim. Any breach of confidence claim in relation to the messages between Mr Wan-Bissaka and Ms Bentley, and the information from the period of their relationship, could only be a claim maintained by Mr Wan-Bissaka, and not the second claimant, in any event.

As for the harassment claim, Nicklin J said that at this stage he was not satisfied that the claimants, on the evidence of Ms Bentley’s conduct thus far, had demonstrated that they were likely to prevail at trial. Acts of alleged harassment, particularly where they consist of speech, must be demonstrated to be of such seriousness as to cross the line between unattractive, even unreasonable behaviour, and conduct which is oppressive and unacceptable. To do so, the gravity of the misconduct must be of an order which would sustain criminal liability under s 2 of the 1997 Act. Further, the claimants would have to demonstrate that the unreasonable and oppressive behaviour was “persistent and deliberate”, that it “targeted another person” and was “calculated to and does cause that person alarm, fear or distress”. This was an objective test and Nicklin J was not satisfied that the evidence proved it.

Accordingly, Nicklin J granted an interim injunction for an initial period of three weeks, but only in relation to Mr Wan-Bissaka’s claim for misuse of private information. Because of his findings in relation to harassment and breach of confidence, no injunction could be granted in respect of the second claimant’s claim. (Aaron Wan-Bissaka v Rhianna Bentley [2020] EWHC 3640 (QB) (9 November 2020) — to read the judgment in full, click here).