The Court of Appeal has granted a privacy injunction (its first since 2011) to prevent the Sun on Sunday revealing details of a well-known entertainer’s extramarital threesome (PJS v News Group Newspapers Ltd  EWCA Civ 100).
The Claimant, PJS, is in the entertainment industry and is married to YMA, another well-known individual in the same business. They have been married for many years and have young children. In 2007/8, the Claimant met an individual with whom he started a sexual relationship. The individual in question also had a partner, and in 2011 the Claimant asked whether the partner would be “up for a three-way”. They were, and PJS met with the couple for an extramarital threesome.
Around January 2016, the couple with whom the Claimant had a threesome approached the Sun on Sunday to tell them about their sexual encounters with the Claimant. The Sun on Sunday decided it would publish the story and on 14 January 2016 the Claimant was contacted to be informed of the position. The Claimant commenced proceedings and applied for an injunction to restrain the Sun on Sunday from publishing the proposed story.
The Defendant opposed the injunction on the basis that the Claimant and YMA had put many details of their relationship in the public domain and had portrayed an image of commitment. Accordingly, it would be in the public interest to publish an account of the Claimant’s sexual exploits with others, correcting that false image, which would contribute to a relevant on-going public debate. If someone makes false public statements about themselves or presents a false image to the public then there is a public interest in setting the record straight (Rio Ferdinand v MGN Limited  EWHC 2454 (QB)).
The Claimant and YMA denied that the article was relevant to any public debate and maintained that they had not courted publicity about their private life. Their relationship was an open one, and YMA accepted that from time to time the Claimant had sexual encounters with others. Their relationship was one of commitment and they provided a loving home for their children.
Cranston J refused the injunction. He did not accept that publication would contribute to an on-going public debate, but accepted that there was a public interest in publication. He found that the Claimant and his partner portrayed an image of commitment and that, having promoted that particular public image, there is a public interest in correcting it when the Claimant has engaged in casual sexual relationships. The judge accepted the Claimant’s submission, however, that portraying an image of commitment does not necessarily mean that they do not engage in sexual relations with other people. He also identified the Article 8 rights of the children as being a relevant consideration. The injunction was nevertheless refused and the Claimant appealed.
The Court of Appeal Decision
The Court of Appeal allowed the appeal and granted the injunction.
Jackson LJ, with whom King LJ agreed, accepted that the Court of Appeal should not intervene with the first instance judge’s balancing of Articles 8 and 10 unless they have erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach (the threshold set by AAA v Associated Newspapers Ltd  EWCA Civ 554). He reached the conclusion, however, that there were two significant shortcomings in the first instance decision.
He found that the judge had not properly explained how he had taken the Article 8 rights of the children into account and also that the portrayal of commitment by the Claimant and YMA did not present a false image requiring correction. He concluded that the Court of Appeal should therefore conduct its own balancing exercise between Articles 8 and 10.
The Court considered whether the public image that the Claimant and YMA had portrayed went further than portraying commitment, i.e. whether they were presenting an image of monogamy to the world. In the bundle of public domain material that had been publicised by the Claimant, submitted by the Defendant, there were two references to monogamy. These were, however, before the Claimant began his extramarital sexual relationship with the individual he met in 2007/8. The Court found that the picture which emerges from the public domain material was not one of total marital fidelity, but rather a picture of a couple who are in a long term, loving and committed relationship. It found that, on the present evidence, that image is an accurate one and publishing details of an extramarital sexual relationship would not therefore be correcting a false image.
The Court agreed with Cranston J that publication would not contribute to a relevant public debate, which was raised again by the Defendant in its respondent’s notice. The Defendant had also raised the argument that publication of the material fell within its freedom to criticise the Claimant as a public figure. The Court accepted the Defendant’s Article 10 rights in this regard, but found that the Claimant’s Article 8 rights prevailed. The Court found that the Claimant had an expectation that his sexual encounters would remain private and that the proposed story, if published, would have a devastating effect on him. The Court also considered that the Claimant’s children would be the subject of increased press attention and that they would be bound to learn about the matters from school friends or the internet in due course.
The Court of Appeal was satisfied that the Claimant was likely (i.e. more probable than not, as per Cream Holdings v Banerjee  UKHL 44) to establish that publication should not be allowed at trial, therefore satisfying the test in section 12(3) of the Human Rights Act 1998. The injunction was therefore granted.
The decision is surprising for a number of reasons.
The Court of Appeal entered into its own balancing exercise of the Article 8 and 10 rights of the Claimant and Defendant, overcoming the high threshold set by AAA, with considerable ease. Despite the fact that Cranston J had referred to and considered the Article 8 rights of the children, the Court found shortcomings in the fact that he had not properly explained how he had taken them into account. The Court also pounced on Cranston J’s acceptance that a portrayal of an image of commitment does not necessarily mean monogamy, and therefore disagreed that there was a false image requiring correction.
The Court of Appeal seemed all too ready to enter into its own balancing exercise between Article 8 and 10, something it perhaps should not have done.
Most surprising, however, is the Court of Appeal's view of what constitutes a 'committed relationship'. It has established a strict approach to considering what public image has been portrayed by a Claimant, which may or may not require correction. Because there were no specific references to monogamy after the extramarital sexual encounter in question, the court found that portraying an image of 'commitment' was not false. Considering that a relationship can be committed yet involve extramarital threesomes is a somewhat liberal interpretation by the Court of Appeal...