Today, the Supreme Court is considering whether the Court of Appeal was right to set aside an interim injunction preventing The Sun on Sunday from publishing an article regarding the extra-marital sexual encounters of a celebrity. The injunction will remain in place until the end of the hearing, at which the Supreme Court will decide whether or not to grant the celebrity permission to appeal against the Court of Appeal’s decision to set aside the injunction and, if permission is granted, whether the appeal should be allowed.
The Court of Appeal set aside the injunction as a result of the story being reported, and the parties being named, in overseas publications and on the internet and social media. The parties do not dispute that the injunction was correctly granted, rather that the substantial publicity in recent weeks amounts to a change in circumstances which warrants it being set aside.
The case raises important issues about the usefulness of privacy injunctions, and the possibility of having an effective right to privacy under Article 8 of the European Convention on Human Rights in the age of the internet, where jurisdictional boundaries are becoming increasingly meaningless and it is easy to read foreign publications online. Commentators have suggested it may sound the death knell for such injunctions.
We will report further on the Supreme Court’s decision once it has been handed down.
The applicant, PJS, is a well known individual in the entertainment business. He is married to YMA, who is in the same business and is also well known. They have two small children. The respondent, News Group Newspapers (“NGN”), publishes The Sun on Sunday. The Sun on Sunday wished to publish an article about PJS’ sexual encounters with AB, and a “threesome” with AB and AB’s partner, CD.
PJS alleged that publication of the article would be a misuse of private information and a breach of confidence, and he applied for an injunction restraining publication, on the basis that it would infringe his right to privacy under Article 8 of the European Convention on Human Rights (“ECHR”). NGN relied on its right to freedom of expression, under Article 10 of the ECHR. It argued that there was a public interest in publishing the article for two reasons: (1) it would contribute to a relevant ongoing public debate; and (2) as PJS and YMA had put many details of their relationship into the public domain, and had portrayed an image of a committed relationship, there was a public interest in correcting that image.
The High Court refused to grant the injunction. Cranston J found that PJS and YMA had promoted a public image of commitment and, although he accepted commitment might not entail monogamy, there was a public interest in publishing the article to correct that image.
Court of Appeal grants interim injunction
This decision was overturned by the Court of Appeal on 22 January 2016. It granted PJS an interim injunction on the basis that publication of the article was not in the public interest. In particular, Lord Justice Jackson found that the article was not correcting a false impression of PJS and YMA’s relationship. The image presented was not of total marital fidelity, but of a long-term, loving and committed relationship. That was an accurate image, so publishing the article would not correct a false image. In addition, publication would not advance the public debate or provide support for any of the competing opinions which were in circulation. On any proper balancing exercise, PJS’ Article 8 right to privacy had to prevail over NGN’s Article 10 right to publish an account of the adultery. In conducting the balancing exercise, Lord Justice Jackson took into account the position of PJS’ children, in particular that if the article was published, it would be likely to lead to increased press intrusion and the children finding out about the adultery through school friends and the internet.
Identification of PJS and YMA
On 6 April 2016, a widely-read magazine in the USA published an account of PJS’ sexual activities, naming those involved. Over the next few days, other publications in America, Canada and Scotland published similar articles. Numerous website then published details of the story, identifying PJS and YMA by name, and the information began circulating freely on social media. At the same time newspapers in England and Wales reported the contents of the redacted judgment, vigorously complaining that they were banned from naming the participants.
As a result, NGN applied to set aside the interim injunction, arguing that as the protected information had entered the public domain, the injunction served no useful purpose and was an unjustified interference with its Article 10 rights.
Court of Appeal sets aside injunction
On 18 April 2016, the Court of Appeal allowed NGN’s application to set aside the injunction.
Lord Justice Jackson noted that neither party was disputing that the injunction had been correctly granted or that the court had correctly carried out the exercise of balancing PJS’s Article 8 rights against NGN’s Article 10 rights. The question was whether there had been a change of circumstances such as to warrant setting aside the injunction, notwithstanding the limited public interest in the proposed story.
The court “discarded swiftly” one change of circumstance relied upon by NGN – that the case had whipped up a public debate about privacy injunctions, and it was important for NGN to participate fully in the debate by identifying PJS and publishing the information – stating:
“It cannot be permissible for the media to stir up a debate about an injunction to which they are subject and then rely upon that debate as a ground for setting aside the injunction“.
The question of whether there had been a change of circumstances required a fresh consideration of sections 12(3) and (4) of the Human Rights Act 1998 (“HRA”) against the backdrop of the now widely available material, none of which was in the public domain when the interim injunction was granted. Section 12(3) provides that, where the issue of freedom of expression is in play, the cannot grant an interim injunction unless it is satisfied that the applicant is likely to establish at trial that publication should not be allowed. Among the matters to which the court must have regard is the extent to which the material has (or is about to) become available to the public (section 12(4)(a)(i) of the HRA). This involved a fact-sensitive assessment of what had occurred, what would occur prior to the trial, and what the result would be at trial.
In conducting this assessment, the court drew a distinction between PJS’ claims based on confidentiality and those based on misuse of private information. Claims for confidentiality generally failed once information had passed into the public domain (Attorney-General v Guardian Newspapers (No.2)  1 AC 109). It was clear that the law extended greater protection to privacy rights than rights in relation to confidential material; however Lord Justice Jackson accepted that the extent of that enhanced protection was less clear. As Mr Justice Eady observed in Mosley v News Group Newspapers Ltd  EWHC 687 (QB) 33, a “point may be reached where the information sought to be restricted by the court is so widely and generally accessible in the public domain that such an injunction would make no practical difference“.
In Lord Justice Jackson’s view, the correct analysis was that a claim for misuse of private information could (and often would) survive when information was in the public domain. It depended upon how widely known the relevant facts were:
“In many situations, the claim for misuse of private information survives, but is diminished because that which the defendant publishes is already known to many readers. The publication is an invasion of privacy and hurtful for the claimant, but is not as egregious as it would otherwise be. That does not deprive the claimant of his claim for damages, but it weakens his claim for an injunction“.
This was for two reasons: (1) the Article 8 claim would carry less weight where the information was in the public domain; and (2) injunctions were a discretionary remedy, and the fact that material was generally known would be relevant to the exercise of the court’s discretion.
It was important to note that section 12 of the HRA did not affect the existence of the claimant’s article 8 claim, nor did it provide any defence to the tort of misusing private information. The effect of section 12 was twofold: (1) it enhanced the weight which Article 10 rights carried in the balancing exercise; and (2) it raised the hurdle which an applicant had to overcome to obtain an interim injunction.
Lord Justice Jackson remained of the view that the article NGN proposed to publish was likely to be a breach of PJS’ Article 8 rights. What had changed was the weight those rights carried, when balanced against NGN’s Article 10 rights. The fact that the material was widely known was also relevant to the court’s discretion. He concluded that it was not “likely” that PJS would be granted a permanent injunction at trial, for seven reasons:
- Knowledge of the relevant matters was now so widespread that confidentiality had probably been lost.
- Much of the harm which the injunction was intended to prevent had already occurred. The relatives, friends and business contacts of PJS and YMA all knew perfectly well what it was alleged that PJS had been doing. There had been numerous headlines such as “celebrity love cheat” and “gag celeb couple alleged to have had a threesome“, and many readers knew to whom that referred.
- Although the material NGN wished to publish was still private, and its publication would be a further unwelcome intrusion into the private lives of PJS and his family, it would not be a shock revelation, as publication in January would have been. The intrusion into the private lives of PJS and his family would be an increase of what they were suffering already.
- If the interim injunction remained in place, newspaper articles would continue to appear recycling the contents of the redacted judgment and calling upon PJS to identify himself. Websites discussing the story would continue to pop up. That process would continue up to the trial date.
- NGN was entitled to publish articles criticising people in the public eye. It therefore had an Article 10 right to publish an account of PJS’ conduct, which had to be balanced against PJS’ Article 8 right for his sexual liaisons to remain a private matter. The need to balance these competing rights meant there was a limit to how far the courts could protect individuals against the consequences of their own actions.
- As a result of recent events, the weight attaching to PJS’ Article 8 right to privacy had reduced. It could not now be said that this right was “likely” to prevail over NGN’s Article 10 right at trial, such as to warrant the imposition of a permanent injunction.
- The court should not make orders which were ineffective. It was inappropriate for the court to ban people from saying that which was common knowledge. This had to be relevant to the exercise of the court’s discretion.
As far as PJS’ children were concerned, although the interests of other family members, including children, were a significant consideration, they could not be a “trump card“. It was now inevitable that the children were going to learn about these matters, so this was now a less material consideration.
Lord Justice Jackson LJ added that once the injunction was lifted, it would be a matter for NGN to decide whether they wished to go ahead with publishing their story. If they did so, they would not be in contempt of court, but PJS would still be able to bring a claim in damages against them for breach of confidence and misuse of private information.
Although the Court of Appeal allowed the application to set aside the injunction, and refused PJS permission to appeal its decision, the court agreed to stay the lifting of the injunction until 20 April 2016, to give PJS time to apply to the Supreme Court for permission to appeal. A press release from the Supreme Court subsequently confirmed that a hearing had been listed for 9.30am on 21 April 2016, when it would hear argument on whether permission to appeal should be granted and, if so, on whether the appeal itself should be allowed or dismissed. The court’s press release confirmed that the injunction would remain in force until it had ruled on these issues.
We will report further on the Supreme Court’s decision once it has been handed down.