In its eagerly awaited recent judgment the UK Supreme Court1 upheld an injunction in relation to what commentators have called ‘the worst kept secret’ in the UK press: the identity of a celebrity (“PJS”) involved in an alleged three-way sexual encounter in 2011.

You will no doubt be familiar with at least some of the details; such is the media storm surrounding it you may in fact already know the identity of PJS. A YouGov survey2 in April of this year showed that already 1 in 4 British people claimed to know the identity of the couple involved.

In the Supreme Court judgment the Justices held, by way of a relatively straightforward application of established principles, that there was no public interest (in the legal sense, not the ‘juicy gossip’ sense) in publishing the story and that PJS would likely be granted a final injunction when the full trial is heard later this year, despite large numbers of UK-based people already knowing the identity of PJS mainly through publication on foreign-hosted websites.

While the decision doesn’t rewrite any rules, it does serve to reinforce highly significant privacy principles in the digital age and signifies the Supreme Court’s stance that the UK judicial system will not bow to criticism from the press no matter how intense the public debate.

The facts

  • Early January 2016: Two people approached The Sun on Sunday with a story concerning themselves engaging in an “three-way sexual encounter” in 2011 with PJS who was married (to “YMA”) with young children. Upon becoming aware that the newspaper (owned by News Group Newspapers Ltd, “NGN”) intended to print the story, PJS and YMA applied for an urgent injunction preventing its release on the basis that it would constitute a breach of confidentiality and an invasion of privacy. PJS’s application for an interim injunction was subsequently refused by the High Court.
  • 22 January 2016: The Court of Appeal3 allowed PJS’s appeal and granted an interim injunction, which was effective for 11 weeks, until a US magazine published the story and identified those involved. Other publications in the US, Canada and Scotland then published similar hardcopy articles and details subsequently appeared on a number of websites, blogs and on social media.
  • 15 April 2016: The Court of Appeal4 heard an application by NGN to lift the injunction, and granted this on 18 April 2016 finding that the injunction no longer served any useful purpose since the previously injuncted information was already in the public domain. The discharge of the injunction was however stayed to enable PJS to appeal to the Supreme Court.
  • 21 April 2016: PJS appealed to the Supreme Court, with the injunction being maintained pending a final decision.

The case has caused significant controversy in the national media, dividing the press and public alike in the debate between the freedom of expression versus an individual’s right to privacy. Needless to say, the Courts’ conflicting decisions have been closely scrutinised by a number of media outlets, and in some cases subject to vigorous criticism by those who feel particularly wronged at being prevented from publishing the story – for example, The Sun labelled the Supreme Court’s decision as a “cheaters’ charter”5 , whilst Mail Online has dubbed the law “an ass!”6.

The decision

The Supreme Court held by a majority of 4-1 (led by Lord Mance with Lords Reed and Neuberger, and Lady Hale assenting; Lord Toulson dissenting) that the appeal should be allowed and the interim injunction restored until trial. The reasoning for allowing the appeal is as follows:

  1. The Court of Appeal made an error of law in its balancing exercise between NGN’s Article 10 right to freedom of expression and PJS’s Art. 8 right to privacy – it incorrectly interpreted s.12 Human Rights Act 1998 as enhancing the Art. 10 right and thus raising the threshold which PJS had to overcome in order to obtain the injunction. This was contrary to established authority that neither article takes preference over the other.
  2. The Court of Appeal was incorrect to conclude that there was “limited”, let alone any, public interest in the story. Lord Mance held that “criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense”, and thus any public interest in publishing this particular story was “at the bottom end of the spectrum of importance” such that it should be “effectively disregarded in any balancing exercise”. Any public interest in publishing criticism of the sexual encounters of celebrities was incapable, by itself, of outweighing conflicting privacy rights.
  3. The Court of Appeal did not fully consider the degree of intrusion and distress that would be caused to PJS and his family by unrestricted press coverage of the story in hard copy and by its further dissemination online. The Court of Appeal focussed too narrowly, in a quantitative sense, on the extent of information that was already in the public domain since the repetition of such disclosures was capable of constituting further invasions of privacy (especially if it occurred in a different medium). The Supreme Court made the distinction that the law of privacy, as opposed the law of confidence, both protects the confidentiality of private information and prevents against intrusion into private lives. A consideration of the effect of publication on PJS’s children was highly significant in this reasoning. Whilst the Court of Appeal noted the inevitability of PJS’s two children eventually learning about the story, it had not given due cause to the immediate risks involved in the surrounding media attention and the potential communication to the children.
  4. Finally, the Supreme Court considered that the question of whether damages could be recovered was not definitive of whether an interim injunction should be granted. A consideration of the particular facts was essential, a task that the Court of Appeal had not sufficiently undertaken, and in this instance it was highly likely that an award for damages, even exemplary damages, would be an inadequate remedy given that PJS’s primary concern was more likely to be the invasion of privacy and not any form of monetary compensation.

The Supreme Court therefore concluded that the interim injunction would be continued until further order or to trial, where it considered that PJS would be likely to succeed in his claim that publication of his identity and further confidential information would be a breach of his Art. 8 rights. Without the injunction, the unrestricted coverage and inevitably extensive “media storm” in England and Wales would constitute a “clear, serious and injurious” invasion of privacy, and largely undermine the purpose of any trial.

The significance

Aside from the fact that the decision represents the first time the UK’s most senior court has ruled on a privacy injunction case, which is notable in itself, the decision was significant since it: clarified the Court’s refusal to accept the ‘right to criticise’ defence (in relation to sexual infidelity); distinguished between the law of confidence and the law of privacy in the circumstances; and served as a reminder that the rights of a claimant’s children will continue to be a highly relevant factor. It is perhaps most significant that the Supreme Court boldly applied established principles in the face of (1) intense pressure from the press and (2) the ‘digital age’ where the internet allows news, or indeed gossip, to permeate all corners of the globe.

From a legal perspective, however, the decision is not particularly surprising.

As Lord Mance uncompromisingly stated, “as to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid” – the Courts will not be bullied by the media and applying the law correctly as laid down by Parliament is precisely their purpose regardless of the degree of public criticism – in agreement, Lord Neuberger explained “the courts exist to protect legal rights, even when their protection is difficult or unpopular in some quarters”. If the Supreme Court refused the appeal since the information concerned was already in the public domain it would have represented a dramatic blow to the efficacy of privacy injunctions, particularly in the world of celebrity.

The Court was however acutely aware of its limitations – Lord Neuberger stated “if Parliament takes the view that the courts have not adapted the law to fit current realities, then, of course, it can change the law…”, and Lord Mance ultimately acknowledged that the case “will probably give rise to further, entirely legitimate, debate on the value of such injunctions in the internet age”.

Indeed, Lord Toulson, in his dissenting judgment, cautioned that “the court must live in the world as it is and not as it would like it to be” and warned against “granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law by giving the appearance of being out of touch with reality”. It is unsurprising therefore that some commentators have criticised the Supreme Court’s majority decision as ‘insular’, shifting the privacy landscape by, de-facto, placing the privacy of a celebrity above the public’s right to know.

Nevertheless, the decision in every privacy matter rests on the facts of the case. In this instance, NGN had not demonstrated any “genuine public interest” to tip the balancing scales enough in favour of their Art. 10 right to justify publishing details of the story.

Important questions have been raised as to whether the nature of the injunctions and indeed the law as it stands are fit for purpose in the digital age, and it remains to be seen how this will develop. For now however, the case of PJS has demonstrated that widespread knowledge of confidential information does not necessarily preclude the granting of privacy injunctions and such injunctions certainly still serve a purpose in order to reduce further intrusion. The decision will likely lead to an increase in applications by other well-known individuals who find themselves in comparable circumstances.

 


[1] PJS v News Group Newspapers Ltd (Rev 1) [2016] UKSC 26
[2] https://yougov.co.uk/news/2016/04/19/1-4-british-people-know-celebrity-threesome-couple/
[3] PJS v News Group Newspapers Ltd [2016] EWCA Civ 100
[4] PJS v News Group Newspapers Ltd [2016] EWCA Civ 393
[5] http://www.thesun.co.uk/sol/homepage/news/7162761/Outrage-as-PJS-gagging-order-is-upheld.html
[6] http://www.dailymail.co.uk/news/article-3526916/American-publication-goes-UK-injunction-report-known-celebrity-extra-marital-threesome.html

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Tobias is an associate in our Intellectual Property Group based in London. Tobias has experience in a wide range of intellectual property matters, particularly across the media & entertainment and technology & communications sectors. He has been involved in a broad range of contentious and non-contentious intellectual property matters in relation to patents, trade marks, passing off, copyright and privacy. He has also worked on brand management matters for a number of clients, including advising a well known restaurant chain and a social media website on enforcement and filing strategy. His litigation experience has involved proceedings in the Intellectual Property Enterprise Court, Patents Court and Court of Appeal, in addition to working on an international arbitration for a world leading technology company.

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