Can privacy survive publicity? – Judgment in PJS

It has long been clear that, so far as the common law is concerned, there is no neat dividing line between information which is private and that which is public. Thus, depending on the circumstances, information relating to an individual’s private life which has entered the public domain may yet engage privacy rights (see further e.g. McKennitt v Ash [2005] EWHC 303 (QB) and Green Corns v Claverley [2005] 958 (QB) and Rocknroll v News Group [2013] EWHC 24 (Ch)). However, what is the position where, notwithstanding that an injunction restrains the publication of the information domestically, the information is being extensively published and shared online elsewhere around the world?

This is the difficult issue which the English Court of Appeal was required to address in the high profile case of PJS v News Group Newspapers [2016] EWCA Civ 393. In PJS, the English Court of Appeal had granted the claimant an interim injunction restraining publication of information concerning his engagement in a particular sexual encounter, the notorious ‘celebrity threesome’. There had been no legal challenge to the granting of the injunction. However, after the injunction was granted, the story was published overseas and promptly spread like wildfire on the internet. This led to an application by NGN to discharge the injunction, on the basis that, because PJS’s identity was now so widely known, it was in effect not worth the paper it was written on.

Seemingly with a heavy heart, the Court of Appeal has allowed NGN’s application. It has done so particularly in light of s. 12 of the Human Rights Act 1998. That provision bears heavily on the granting of injunctive relief in freedom of expression cases. It specifically requires the court to take into account whether the material in question has or is about to become available to the public (s. 12(4)(a)(i)). Ultimately, the Court accepted that matters had got to a point where the information cat was so well and truly out of the bag that PJS would not succeed at trial in obtaining a final injunction and, accordingly, the interim injunction must be discharged. Anyone who recalls the Spycatcher litigation will perhaps not be altogether surprised by this outcome.

Notably, the Court did not regard its judgment as amounting to the judiciary succumbing to a media campaign of defiance or disobedience. Indeed, it made clear that such a step would have been contrary to the rule of law (para. 42). The important point in the present case was that PJS was not alleging that the media had acted in defiance of the injunction. Instead, his case (assuming that PJS is a man) was that a large number of people had acted defiantly. The court’s response to this point was as follows: ‘The difficulty is that the Internet and the social networking have a life of their own. Furthermore, this court has little control over what foreign newspapers and magazines may publish’ (Jackson LJ para. 44).

However, where does this leave claimants who whose privacy rights are genuinely in issue? The Court of Appeal’s answer to this question appears to be that it leaves them with the right to claim damages. But this answer will afford little comfort to those claimants who are not interested in the money but only in safeguarding their data privacy. Notably, the case does not seem to have been argued on the basis of the application of data protection laws. Query whether the outcome would have been any different if it had.

It remains to be seen whether the case will go to the Supreme Court.

Anya Proops QC