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Summary

The Supreme Court has upheld the PJS injunction by a majority of four to one, preventing the mediaiona_millership_ph[1] from naming the celebrity involved in alleged threesome at the end of 2011.

This is an eagerly-awaited judgment in the most high-profile injunction of the year to date.  By way of a recap, in early January the Editor of the “Sun on Sunday” notified PJS that he proposed to publish the story.  PJS applied for an urgent interim injunction to prevent the publication on 15 January, which was refused by Cranston J, who also granted permission for PJS to appeal.  The Court of Appeal (Jackson and King LJJ) heard the appeal on 21 January and handed down its judgment the next day which granted an injunction to restrain the publication of the relevant names and details of their relationship.

In early April a US-based magazine published the story regarding PJS, naming those involved.  This was followed by the publication of similar articles in Canada and Scotland, as well as on numerous websites and social media.

On 12 April, News Group Newspapers (“NGN”) applied to the Court of Appeal to set aside the interim injunction on the basis that the protected information was now in the public domain and that the injunction therefore served no useful purpose and was an unjustified interference with their Article 10 right to freedom of expression.  The Court of Appeal (Jackson, King and Simon LJ) heard the appeal on 15 April, and on 18 April handed down a judgment discharging the injunction.  The application for permission to appeal and submissions relevant to appeal were heard by the Supreme Court (Lord Neuberger, Lady Hale, Lord Mance, Lord Reed and Lord Toulson) on 21 April 2016.

The question for the Supreme Court on appeal was whether the Court of Appeal’s had exercised its discretion correctly in discharging the January injunction as a result of the publication of the private information abroad and online.  The leading judgment was given by Lord Mance, who overturned the decision of the Court of Appeal and decided that, despite the “existing invasions of privacy being perpetuated on the internet”, the interim injunction should be continued until trial to protect the rights of PJS, his partner and their children.  In coming to this conclusion, he identified that the Court of Appeal had made the following errors of law in exercising its discretion:

  1. Section 12 of the Human Rights Act 1998. All of the members of the Supreme Court agreed that the Court of Appeal had made a “clear error of law” in its reasoning in relation to section 12 by interpreting that section to “enhance the weight which article 10 rights carry in the balancing exercise” [carried out by the court when considering relief which, if granted, may affect the exercise of Article 10 rights].  Lord Mance considered this error to affect the balance between competing rights and in itself to require the Supreme Court to re-exercise the discretion exercised by the Court of Appeal in setting aside the injunction.
  2. Reference to “limited public interest“. The Court of Appeal referred to there being “limited public interest” in the proposed story and in doing so relied upon the point that the media was entitled to criticise the conduct of individuals, even where there was nothing illegal about it.  Lord Mance disagreed with this, stating that “the criticism of supposed infidelity cannot be the guise under which the media can disclose kiss and tell stories of no public interest in the legal sense“.  This analysis resulted in any public interest in publication being “effectively disregarded in any balancing exercise“.
  3. The distinction between rights of confidence and privacy rights. 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“.  The Supreme Court set out that different considerations were applicable for the present privacy claim and the primary question was not whether the information was still “private” or “secret” but instead whether the proposed publication would be intrusive and distressing.  The Court considered there was a “qualitative difference in intrusiveness and distress” between the existing disclosures on the internet and the “media storm” that would be generated if the injunction was lifted.
  4. An effective remedy. When lifting the injunction, the Court of Appeal concluded that PJS was likely to establish a tortious invasion of privacy in which he would be able to claim for damages.  Lord Justice Mance did not consider that this would be a “practical and effective” remedy for the PJS in respect of any invasion into his privacy.

Lord Neuberger’s assenting judgment drew attention to a number of first instance cases between 2000 and 2015 where “intrusion had been relied on by judges to justify the grant of an injunction despite a significant loss of confidentiality” and noted that there tended to be a “clear, principled and consistent approach at first instance when it comes to balancing the media’s freedom of expression and an individual’s rights in respect of confidentiality and intrusion“.  His judgment focused on the fact that there would inevitably be greater intrusion and harassment into the lives of PJS and YMA if the injunction was discharged, both in the traditional press and on the internet.

Lady Hale’s assenting judgment focuses exclusively on the interests of PJS and YMA’s children and the importance of considering carefully “the nature and extent of the likely harm to the children’s interests which will result in the short, medium and longer terms from the publication of this information about one of their parents” at trial.

Finally, Lord Toulson’s dissenting judgment agreed with the Court of Appeal that the injunction should not continue, stating that “the court needs to be very cautious about 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“.

Analysis

PJS ignited a heated public debate in relation to privacy, press freedom and the value of media injunctions in the internet age.

The judgment is likely to be criticised by many who will not consider the Court’s distinction between publications on different mediums to reflect reality.  We live in a digital age where the public routinely relies on international websites as a primary for news and information.  Many are unlikely to consider a story in a newspaper to have “greater influence, credibility and reach, as well as greater potential for intrusion, than the same story on the internet“.  This is recognised in Lord Toulson’s judgment where he describes the world of public information as “interactive and indivisible“.

The Supreme Court was under significant media pressure to lift the injunction and it is well aware of this in its judgment.  Indeed, Lord Mance’s judgment anticipates the Court being “criticised for giving undue protection to a tawdry story by continuing the injunction to trial“.  The media backlash to the decision has already started, with the Mail Online describing the judgment as “ludicrous” and “a cheaters’ charter” within minutes of the judgment being handed down yesterday morning: see here.

Lord Neuberger’s judgment ends with a paragraph explaining that the Supreme Court is simply applying the current law and notes that “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“.  It will be interesting to see whether reforms will be proposed following this judgment and its inevitable high-profile criticism throughout the British media.