It is not often that the outcome of a Supreme Court appeal makes the front pages of English newspapers, but that is precisely what happened with the recent judgment in PJS v News Group Newspapers Limited (NGN). The case has received widespread public attention and media scrutiny in recent months, which culminated in the Supreme Court’s judgment in favour of PJS finding that the injunction preventing publication of the story or name should stay in place until trial or a further order of the Court.
Interim privacy injunctions are clearly here to stay for now, despite the media outcry over the judgment, and the Court acknowledged the pervasive effect of national newspaper publication of a story. However, the case shows that claimants still need to give careful consideration to the coverage that a story may receive through social media and international publications in any event despite an injunction being in place.
Facts of the case
PJS, who was the appellant in this appeal and the Claimant in the action, is a well-known entertainer and married to another well-known individual, YMA, with whom he has two young children. Several years ago, between 2009 and 2011, PJS entered into sexual relationship with another individual, AB, and also had one encounter which included AB’s partner, CD. In early 2016 PJS was informed by NGN’s Sun on Sunday title that it intended to publish AB’s story about these encounters. PJS subsequently issued proceedings against NGN and an application for an interim injunction preventing publication of the story until trial or a further Court order. PJS claimed that publication would breach the confidentiality of the information and would also invade his privacy and that of his children.
The High Court refused to grant PJS an interim injunction on 18 January 2016 on the basis that he and YMA had presented an image to the world of a committed relationship and that this portrayal had reduced his reasonable expectation of privacy. On 22 January 2016 the Court of Appeal allowed PJS’ appeal against the decision of the High Court, deciding that there was in fact no public interest in the story since neither PJS or YMA had presented a public image of monogamy which required correction, but had merely stated publicly that they were committed to one another, and therefore granted PJS an interim injunction preventing publication.
At the start of April, a publication in the United States printed the story identifying PJS. While English and Welsh users were geo-blocked from accessing the publication, details of the story were subsequently reproduced by other websites, foreign publications and was subject to a great deal of social media gossip and speculation. Given the extent of discussion of the identity of PJS on Twitter and elsewhere online, NGN applied to the Court of Appeal to set aside the interim injunction on the basis that it was unlikely PJS would be able to obtain a permanent injunction at trial given the widespread availability of the information. The Court of Appeal agreed that PJS was unlikely to obtain a permanent injunction and therefore on 18 April 2016 allowed NGN’s application to set aside the interim injunction. This decision was, somewhat inevitably, appealed by PJS to the Supreme Court immediately afterwards with the application for permission to appeal and submissions should permission be granted both being heard on 21 April 2016.
The Supreme Court Judgment
On 19 May 2016 the Supreme Court handed down its eagerly anticipated judgment in favour of PJS, whose appeal against the Court of Appeal decision was allowed. By a majority of 4 to 1, with Lord Toulson dissenting, the Supreme Court decided that the Court of Appeal had made an error in law in allowing NGN’s application, since it had incorrectly stated that greater weight should be given to the right of freedom of expression (being relied upon by NGN in seeking to publish) than to the competing right to privacy (being asserted by PJS). The Court of Appeal had wrongly stated that the right to freedom of expression deserved greater weight in principle due to the factors listed at s12 of the Human Rights Act 1998, which include the availability of the information. The Supreme Court emphasised that neither right has a preference in principle over the other and that an appropriate balancing act should be undertaken by the Court to establish whether the rights of the proposed publisher or the party wishing to restrain use of their private information should prevail.
The Supreme Court also decided that there was no public interest in the story itself. The Court of Appeal had mistakenly referred to it having ‘limited’ public interest whereas the Supreme Court decided there was none at all. The judgment again made it clear that what the public is interested in will continue to be a different matter from whether a story is genuinely in the public interest, which contributes to a debate of general interest to society. Moreover, the Court also said emphatically that there will not be any public interest in the disclosure or publication of purely sexual matters, even those which concern adultery, without any specific facts in a case which make it appropriate to rebut this basic principle.
The Court further stated that, despite the various assertions made by NGN, the story being published in national newspapers would inevitably lead to greater intrusion into the private life of PJS and his family and cause them distress. As such, the only way for PJS and his family to prevent this further intrusion and distress would be an interim injunction restraining the English media from publishing the story.
The judgment also made clear that there is a fundamental difference between claims for breach of confidence and those for breach of privacy. For claims relating to confidentiality, widespread disclosure of the information in the public domain is likely to make an interim injunction an inappropriate remedy. The confidence in the information will likely already have been lost completely and there will be little that an injunction can still protect. For claims relating to breach of privacy, however, an interim injunction can still serve a useful purpose even where widespread disclosure has occurred, by preventing further publication or intrusion into the private lives of the individuals concerned.
The BLP view
The Supreme Court found itself in the invidious position of handing down a judgment in PJS which was always likely to leave one side of the debate incredibly frustrated. The Court was clearly conscience of the need for the judiciary to attempt to keep pace with the internet age and to avoid acting like ‘King Canute’ by trying in vain to hold back the tides of Twitter or the fury of Facebook.
However, in many ways the judgment merely re-emphasised the legal position in relation to the misuse of private information and the balancing act the Courts are obliged to undertake under the Human Rights Act between the right to freedom of expression and the right to private life. It will continue to be the case that where there is no legitimate public interest in publication, claimants will be able to seek interim injunctions preventing newspapers from printing details of their private lives. Further, the Court has also reasserted that there will, in principle, be no public interest in the publication of details about an individual’s sexual conduct. So, in the event that a Court determines that on the facts of a case there is no public interest in a story of this type, publishers will continue to face the prospect of injunctions restraining unlawful use of the private information.
The Supreme Court has emphasised there is a clear difference between those who are interested in finding out the private information searching for it on Twitter and publication on the front page of national newspapers. Weight for this position came from the judgment’s reflection that while 20% to 25% of the British population may know PJS’ identity, at least 75% do not. Given the impact that publication in a national newspaper can have, the Court acknowledged that there was still a real value to claimants in preventing publication by the papers and the consequent intrusion that such stories can bring.
The only possible alternative for the Supreme Court in PJS was to accept that the English courts no longer have jurisdiction to impose restrictions in England and Wales protecting individuals’ private lives in the event that elements of the information have entered the public domain through foreign publications or social media. Such a decision would have swept away the carefully developed jurisprudence, which now allows individuals to assert their rights to privacy, and provided an easy and unsatisfactory route for publishers to circumvent the effects of an order of the English Court.
Claimants seeking interim injunctions restraining publication still need to be realistic, though. Individuals should be aware that in the social media age it can be incredibly difficult and sometimes impossible to prevent social media from discussing elements of the story or the identities of the parties, as this case clearly shows. Similarly, clients will need to be aware that where they have a truly global profile an interim injunction in England and Wales is likely to be only one part of a pre-publication strategy given the possibility that the story may end up in foreign newspapers in any event.
The judgment also acknowledged that it is possible that Parliament may in future decide to reform the law on the availability of interim injunctions under the Human Rights Act given the changes brought about by the internet, and that debate may well continue in light of the uproar the PJS judgment has caused in some quarters. For now, however, interim injunctions will continue to be an available and valuable remedy for high profile figures wishing to prevent mainstream press intrusion into their private lives.