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On appeal from: [2016] EWCA Civ 393

The Supreme Court unanimously granted permission to appeal and by a majority of 4 to 1 the Supreme Court allowed PJS’s appeal against the decision to set aside the injunction.

The applicant was in the entertainment business and married to another well-known individual in the same business. They were in an open relationship (which was information not in the public domain) and had young children together. An interim injunction had been granted prohibiting the publication of the appellant’s extramarital relations with another couple, but this had been set aside recently by the Court of Appeal on the basis that knowledge of the relevant matters is now so widespread that confidentiality has probably been lost because of overseas and online publication identifying the couple involved.

The applicant challenged this decision in the Supreme Court, arguing that the judge had erred in balancing the competing rights at play.

In giving the lead judgment for the majority, Lord Mance stated that the principal error was that the Court of Appeal wrongly directed itself that the Human Rights Act 1998, s 12, enhanced the weight to be given to ECHR, art 10, rights in the balancing exercise, when the case law establishes that neither art 8 nor art 10 has preference over the other and what is necessary is an intense focus on the comparative rights being claimed in the individual case.

He also stated that there is no public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time. The question is whether the injunction can still serve a useful purpose and in this sense it is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story. It is also the only remedy of any value to PJS for the breach of of his and his family’s privacy rights.

Lord Toulson, dissenting, would have upheld the discharge of the injunction. He considers that where the information is widely available, the form of the publication should not make a significant difference.

For judgment, please download: [2016] UKSC 26
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website