Privacy can survive online publicity: Supreme Court restores ‘celebrity threesome’ injunction

May 19th, 2016

The Supreme Court has today given judgment in PJS v News Group Newspapers [2016] UKSC 26. It has overturned by a majority (Lords Mance, Neuberger, Reed and Lady Hale) the Court of Appeal’s judgment of 18 April 2015 in the ‘celebrity threesome’ case and restored the interim reporting injunction pending trial. It concluded that, notwithstanding internet publications and articles in the press outside of this jurisdiction, it was not pointless to maintain the interim injunction, and that no genuine public interest in this story had yet been demonstrated.

Anya Proops posted on the Court of Appeal’s judgment: see here. She commented on blurred dividing lines between the private and public spheres. The Supreme Court’s judgment shows that there can be blurred dividing lines between different types of public sphere. In particular: just because information is public on the internet, it does not follow that it should be made public everywhere, such as in the print media. In that sense, the Supreme Court has reinforced the principle of privacy, even where its value has been undermined in practice. It has refused to allow the online ‘wild west’ to wipe out the law of privacy.

The crucial error by the Court of Appeal related to section 12 of the Human Rights Act 1998, which provides (at subsection 3) that a pre-publication injunction should not be granted “unless the court is satisfied that the applicant is likely to establish that the publication should not be allowed”, and (at subsection 4) particular regard should be had to freedom of expression, the public availability of the information and the public interest in its publication. The Court of Appeal erred in directing itself that section 12 “enhances the weight which Article 10 rights carry in the balancing exercise”. The correct position is that, even at the interlocutory stage, neither Article 8 nor Article 10 has preference over the other. The competing justifications for interfering with each of those rights must be scrutinised intensely and a balance struck.

As to the balance in this case, the Supreme Court concluded that, whereas the Court of Appeal considered there to be “limited” public interest in this story, there was in reality no genuine public interest (as opposed to public titillation which may sell newspapers).

Despite extensive internet coverage, the publication of this story in the print and mainstream media in this country would cause significant incremental damage to the applicant’s privacy, as well as to his children. The Court of Appeal had underestimated those factors. As regards the impact on the children, see in particular Lady Hale’s – partially redacted – judgment. Furthermore, damages would not be an effective alternative remedy for the applicant here.

The Supreme Court’s view was that a permanent injunction was likely to be granted in these circumstances.

The Supreme Court also endorsed the principles from authorities in similar cases, such as the CTB footballer ‘super injunction’ case. Purely private sexual encounters (even involving multiple people or adultery) do not, without more, attract public interest in publication. Disclosure or publication of such information will, on the face of it, constitute the tort of invasion of privacy. Repeated disclosures of even publicly known information can be further torts in their own right.

Here are some other noteworthy observations:

“… the law is there to protect the legitimate interests of those whose conduct may appear unappealing, as well as of children with no responsibility for such conduct” (Lord Mance at [2]);

“In these circumstances, it may be that the mere reporting of sexual encounters of someone like the appellant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under article 10 at all. But, accepting that article 10 is not only engaged but capable in principle of protecting any form of expression, these cases clearly demonstrate that this type of expression is at the bottom end of the spectrum of importance (compared, for example, with freedom of political speech or a case of conduct bearing on the performance of a public office)” (Lord Mance at [24]);

“… the internet and other electronic developments are likely to change our perceptions of privacy as well as other matters – and may already be doing so. The courts must of course be ready to consider changing their approach when it is clear that that approach has become unrealistic in practical terms or out of touch with the standards of contemporary society. However, we should not change our approach before it is reasonably clear that things have relevantly changed in a significant and long-term way” (Lord Neuberger at [70]).

There are also namechecks for King Canute, John Wilkes and the old “the law is an ass” adage. As to the latter, Lord Neuberger’s observation (see the paragraph above) suggests that the law might not be such a stubborn ass after all. It is willing to adapt to the realities of the internet age and will not cling to artificially absolute privacy principles indefinitely. Privacy principles must be flexed in the face of online realities, but they need not be altogether destroyed.

Robin Hopkins @hopkinsrobin

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