Three way in the Supreme Court: PJS remains PJS

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] UKSC 26 – read judgment

The Supreme Court has this morning continued the interim injunction concerning PJS’s extra-marital goings-on until after the full trial of the claim – after a rollercoaster ride for his claim through the courts.

Cranston J refused an injunction on 15 January 2016.

The Court of Appeal granted it on 22 January (Matt Flinn’s post here), and then discharged it on 18 April due to the effect of subsequent publicity which they said had led the injunction to have no remaining purpose (my post here). The subsequent  publicity was in US newspapers and via the internet (with, as Lord Toulson commented, some fairly obvious twitter hashtags involved.)

The Supreme Court swiftly convened a hearing on 21 April, leading to today’s judgment reversing the Court of Appeal.

The decision (4-1) was not unanimous, with Lord Toulson dissenting. There are three concurring judgments (all agreed to by the majority).

 

The territory was the typical clash of PJS’s (and his family’s) Article 8 rights to privacy with News Group’s freedom of expression under Article 10 (the latter bolstered by s.12 of the Human Rights Act).

Lord Mance gave the main judgment.

The Supreme Court’s major legal disagreement with the CA concerned the effect of s.12 HRA. The CA had directed itself that s.12 “enhances the weight which Article 10 rights carry in the balancing exercise” with Article 8 rights, which the SC said was wrong.

It was

contrary to considerable authority, including authority at the highest level, which establishes that, even at the interlocutory stage, (i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied.[20]

Lord Mance cited In re S  [2004] UKHL 47 para 17, McKennitt v Ash [2006] EWCA Civ 1714, para 47, and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), para 28, per Eady J

The exercise of balancing Article 8 and Article 10 rights has been described as “analogous to the exercise of a discretion”: AAA [2013] EWCA Civ 554. Normally such exercises mean that it is more difficult for an appellate court to interfere. But, because of the error in the CA’s legal approach, it was open to the SC to re-exercise the discretion which the Court of Appeal exercised in setting aside the injunction.

 

The SC also cast doubt on the suggestion by the CA that the story carried even a limited public interest. In words which may trouble many a tabloid journalist

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). For present purposes, any public interest in publishing such criticism must, in the absence of any other, legally recognised, public interest, be effectively disregarded in any balancing exercise and is incapable by itself of outweighing such article 8 privacy rights as the appellant enjoys.and that s.12 raised the hurdle which the claimant must overcome to obtain an interim injunction.

The legal analysis of where the CA went wrong was essentially adopted by Lord Neuberger’s concurring judgment at [51]-[53].

Lord Mance engaged with the CA’s close assimilation of the tort of privacy with that of confidence – confidence being particularly subject to evaporation caused by prior publication. After a review of various celebrity injunction cases, it summarised the position at [32]

Every case must be considered on its particular facts. But the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made – especially if it occurs in a different medium.

Lord Neuberger agreed at [57]-[62]. Privacy claims do not depend on confidentiality, so confidentiality may have evaporated but privacy may persist. At [58], he supported an endorsement of the rights to privacy as consisting of two core elements,

unwanted access to private information and unwanted access to [or intrusion into] one’s… personal space

In short, the elements were confidentiality and intrusion.

The SC then applied these tests, and those laid down by s.12 HRA. It decided that the CA had too narrow a focus on the past internet disclosures, and did not give due weight to the qualitative difference of PJS’s story being all over domestic hard copy and press internet sites, with the attendant media storm as compared to those past disclosures. Nor were the interests of PJS’s children properly reflected in the CA’s judgment, a point particularly focussed on by Lady Hale in her judgment.

At [38]-[43] the SC considered whether damages would be an adequate remedy, if an injunction were not granted. It noted that there had been first instance findings that exemplary or punitive damages were not recoverable for misuse of private information, though

the contrary remains open to argument at higher levels, and whether an account of profits might be claimed is likewise open.

Again, a bit of shiver may be running through the media’s dovecotes at the reference to an account of profits. And Lord Toulson agreed: existing caselaw against exemplary damages may not be “the final word on the subject”: [92].

The majority of the SC proceeded on the basis that damages, however assessed, would be an inadequate remedy.

So to the SC’s conclusions. The further invasions of the family’s privacy which would result if no injunction were granted would be “clear, serious and injurious”, despite the ability of some who could probably deduce from an internet search the identities of those involved. On the present evidence, a permanent injunction would be likely to be granted. Thus the test in s. 12(3) of the Human Rights Act would be satisfied in that PJS was “likely to establish that publication would not be allowed.”

The Court (especially in [70]) were all too aware that the internet may be changing our perception of privacy, but saw no reason to not to follow the considerable body of recent caselaw listed in [59] – many of which post-date 2010.

Lord Toulson, on the other hand, would have discharged the injunction, and would principally have followed the reasoning of the CA – though he did agree with the majority that the CA got it wrong in terms of the Art.8/Art.10 balance. He thought that the story’s confidentiality had become

so porous that the idea of it still remaining secret in a meaningful sense is illusory: [86]

He was less impressed by the effect of further intrusion over and above that which would happen anyway as a result of existing publicity: [90].

Conclusion

These judgments are going to lead to an important recalibration of the law as between privacy and the press. There was some unedifying triumphalism (behind paywalls) after the CA’s ruling which predicted the end of the celebrity injunction. According to the Supreme Court, that end is far from nigh, and there are signs in these judgment that, even if in particular circumstances an injunction was not granted, damages might not be as modest as they have been in recent years.

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