In an anonymised judgment dated 22nd January – but only recently published – the Court of Appeal underscored the importance of the right to privacy in the context of sexual activity.
In the modern digital age – an age when society is grappling with “sexting” and “revenge porn”, and one’s follies may be photographed and uploaded to Facebook for friends and family (and others) to see for years to come – the nature and scope of privacy, and the public’s expectations in relation to it, are being consistently challenged and redefined. This case may therefore be seen as a welcome re-affirmation of the basic point that, at least in normal circumstances, one’s sex-life is inherently private, and not a topic for public consumption.
In January of this year, the Sun newspaper sought to publish an article about a well-known entertainer (anonymised as “PJS”), in which it claimed that, despite being in a long-term committed relationship, he had been engaging in sexual activity with other people, including a “three-way sexual encounter” with a couple in around late 2011. The entertainer sought an interim injunction to prevent publication of the article, which was refused by the High Court. His appeal was then subject to an urgent hearing before a two-person bench in the Court of Appeal.
It is well-established that freedom of expression, enshrined in Article 10 of the European Convention on Human Rights (“ECHR”) is a right of fundamental importance in a healthy democracy. It is a qualified right, however, and frequently, it can and will come into conflict with Article 8, which protects the right to respect for one’s private life.
Whilst section 6 of the Human Rights Act 1998 (“HRA”) mandates that public authorities act compatibly with the human rights enshrined in the ECHR, generally speaking it does not impose the same obligation on private entities and persons. Nevertheless, because courts are public authorities (under section 6(3) of the HRA) human rights considerations permeate the legal reasoning of judges, and they must act compatibly with the rights enshrined in the ECHR, so far as possible, wherever it is relevant. In cases like this one, Articles 8 and 10 have been built into the traditional common law action for breach of confidence. That was established in the famous case involving the model Naomi Cambpell (Campbell v MGN Ltd  2 AC 457; see also A v B plc  QB 195). In basic terms, where person X receives information about which person Y has a reasonable expectation of privacy, it will be a breach of confidence for X to publish that information, unless the court concludes that prohibiting publication would amount to a disproportionate interference with X’s right to freedom of expression under Article 10 of the ECHR. In determining that issue, the right to free expression under Article 10 and the right to privacy under Article 8 have to be balanced against each other
In the case of In re S (a child)  1 AC 593. Lord Steyn summarised the position at paragraph 17 of S as follows:
First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…
That balancing test was the focus of the Court of Appeal’s decision in this case. The following factors and points of principle were of particular importance in its reasoning:
- The mere gratification of readers’ prurient curiosity does not serve the public interest (Donald v Ntuli  EWCA Civ 1276).
- In light of that principle, the Sun had argued that PJS and his partner had purveyed in the media a misleading impression of commitment to each other. The court disagreed. In a nod to the fluidity and breadth of contemporary sexual ethics, the court noted that, as the first instance judge had pointed out, commitment did not necessarily entail monogamy.
- In that regard, the bundle of media materials relied upon by the Sun contained only two references to monogamy, both of which pre-dated the sexual relations at issue in the present case, and in an age where an article, once written and uploaded, could be accessible for many years, it was not always incumbent on individuals to provide updates or publicise corrections when circumstances changed. More significantly, the court held that insofar as PJS and his partner had publicly portrayed an image of commitment to each other, that appeared to be the truth on the evidence before the court, albeit they had an open relationship in recent years. Accordingly, there was no misleading impression which it was in the public interest to correct.
- In the court’s view, the information would not meaningfully contribute to any ongoing public debate.
- The proposed story would be devastating to the Claimant.
- In case such as this the rights of affected family members were also relevant (ETK v News Group Newspapers Ltd  EWCA Civ 439). In this case, the Claimant and his partner had children, and the court considered that the publication of the article could have a significantly harmful and/or disruptive impact upon them as well.
Accordingly, the Court of Appeal found that the balance lay firmly in favour of preserving the Claimant’s Article 8 rights over the Article 10 rights of the Sun newspaper, and it overturned the first instance decision and granted an interim injunction.
Of course, the injunction was only “until trial or further order”. It remains to be seen whether or not this matter will be revisited at a hearing to determine whether or not a final injunction will be issued. That may be unlikely given that under section 12(3) of the HRA “no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”.