The widespread publication of allegations relating to a married celebrity's private life in the United States, Canada, Scotland and on social media, will not prevent the granting of injunctive relief in England according to a recent Supreme Court decision handed down on 19 May 2016.
The celebrity, identified as PJS for the purposes of the case, is married to YMA. The Sun on Sunday newspaper, published by News Group Newspapers, contacted PJS in advance of a publication of an account of an alleged extramarital relationship. PJS sought to prevent publication under Article 8 of the European Convention on Human Rights which protects one's right to privacy. At first instance the Court balanced PJS's Article 8 rights with the newspaper's right to freedom of expression, protected under Article 10. While the High Court refused the application, on 22 January 2016 the Court of Appeal granted an interim injunction restraining publication of information identifying PJS and details of the relationship. Media outlets in the United States, Canada and Scotland went on to publish an account of the relationship. Details were also published by way of social media. The Sun on Sunday applied to set aside the injunction where the information was now in the public domain. It argued that the injunction was no longer justified. The Court of Appeal agreed and discharged the injunction.
The Supreme Court however has restored the injunction on the following basis:
- While the right to privacy does not trump the right to freedom of expression, neither has preference over the other.
- There is limited public interest in the story of a private relationship however famous the individuals involved.
- In answering whether an injunction can still "serve a useful purpose", the Supreme Court considered the medium and form of previous publications. Interestingly, it was found that there is a qualitative difference between internet disclosures and what would be described as a "media storm" if published in hard copy in the English media.
- PJS has children and publication would be contrary to their interests.
- The injunction is of value where an award of damages would not practically and effectively remedy such an intrusion.
- PJS was likely to establish that the publication would constitute a serious breach of his and his family's privacy rights and there was no countervailing public interest to allow that notwithstanding the availability of the story on the internet and social media.
There have been relatively few cases on privacy in Ireland and no dedicated privacy legislation has yet been enacted. The Irish Courts however have previously considered the clash between Article 8 and Article 10 rights finding in Herrity –v- Associated Newspapers [Ireland] Limited that cases where the right to privacy will prevail over the right to freedom of expression may well be few and far between. In the case of Eoin McKeogh, a young Irish student who was wrongly identified online as a man who had exited a taxi without paying, Mr Justice Peart stated that he readily understood Mr McKeogh's motivation in trying to stop the "vituperative internet chatter" but that the Court could not "unring" the bell that had sounded so loudly online. Where, in the words of Winston Churchill, "a lie gets halfway around the world before the truth has a chance to get its pants on", the Courts will continue to find it difficult to remedy online defamation and invasion of privacy.
We have yet to see a similar type of celebrity injunction sought in Ireland. Given the protections afforded in Ireland to the family, we expect an Irish Court would decide that a family's privacy rights trump freedom of expression in the absence of any public interest.