The “up for a three-way?” case: injunction set aside

Humorous image of the bare feet of a man and two women in bed sticking out from under the bedclothes conceptual of a threesome, orgy, swingers or sexual cheating

PJS v. News Group Newspapers Ltd [2016] EWCA Civ 393 – read judgment

Matthew Flinn posted here recently on an earlier decision in this case, PJS (22 January 2016), in which the Court of Appeal granted an interim injunction banning revelation of PJS’s extra-marital ventures.

Yesterday’s judgment sets that injunction aside, solely on the basis that those escapades had now been so widely reported on the internet and in a US publication that it was less likely that PJS would get an injunction at any future trial of the claim.

This decision was reported in a somewhat partial way in today’s Times – “the death knell for celebrity privacy injunctions”. Things are not quite as simple as that. The injunction was only discharged because of the wide publication ground which the story had now received, not on the underlying merits of the privacy claims. But then The Times (proprietor NGN) was not necessarily going to give us a fully objective account of a case in which the Sun on Sunday (proprietor NGN) had secured this win.

The CA thought that the claimant would still establish a breach of Article 8, and NGN may still face a claim for breach of confidence: see [47] and [50]. But applying the test laid down in section 12(3) of the Human Rights Act, it was no longer satisfied that it was likely that the claimant would “establish that publication would not be allowed.” In short, it was satisfied that widespread knowledge was such that confidentiality had probably been lost. Relatives, friends and other contacts of the claimant in all probability already knew the story. Further publication would increase intrusion, albeit that it will not be the shock which it would have been at the time of the CA’s original judgment. The court should not end up making orders which would be ineffective in practice. The setting aside of the ban means that it is for the paper to decide to publish the article in the face of the CA’s views that publication would be in breach of Article 8.

The result is unattractive. Prurient press attention abroad enables a prurient press here to say – no matter that we may not be respecting someone’s Article 8 rights, it does not matter, because our colleagues abroad have sprung the trap. PJS’s barrister put it well:

The media have whipped up the current debate and encouraged their readers to search online for the protected information. They are putting pressure on the court to set aside the injunction, by a series of articles ridiculing the decision. See, for example, the Daily Mail article of 10 April 2016 entitled ‘WHY THE LAW IS AN ASS!’. The court should not succumb to such pressures, but apply the statutory test [under HRA]

But the CA could find no way out of this – possibly because it could not actually be shown that the media was in breach of the terms of the injunction.

The Times tells us that the injunction will be discharged tomorrow unless the claimant persuades the CA to grant it permission to take the case to the Supreme Court.