The Supreme Court has upheld an interim injunction preventing the press from identifying a celebrity involved in a three-way sexual encounter.
The case had caused significant controversy in the national media owing to the fact that the claimant's identity had been published in other jurisdictions and is widely known through social media and the internet. The defendant publication, The Sun, had gone so far as to ask its readers to write to MPs to name the celebrity in Parliament so as to publicise their identity through the safe haven of parliamentary privilege. However, the Supreme Court by 4-1 held in relatively straightforward terms that there was no public interest in publishing the story and the claimant would likely be granted a final injunction at trial. Accordingly, despite the existence of the celebrity's name being known by a significant percentage of the public, the interim injunction will stay in place. A full trial in the matter will be heard later this year.
The case raises some very important questions as to the viability of privacy injunctions in the internet age and how the law may have difficulty in maintaining pace with the development of electronic communications.
The claimant, PJS, is a well-known celebrity in the entertainment business who is married to YMA. The couple have two young children. PJS was said to have had an extramarital affair in a three-way sexual encounter with another couple four years ago. That couple approached The Sun on Sunday which attempted to print the story in January this year. PJS and YMA applied for an interim injunction against News Group Newspapers to prevent publication of the story on the basis that publication would breach confidence and invade privacy.
In summary, an applicant seeking an injunction or damages for misuse of private information under UK law will need to show that he or she has a reasonable expectation of privacy in the circumstances. If it is determined that the applicant has a reasonable expectation of privacy, the court will then be required to balance the two competing rights in issue: the applicant’s right of respect for private and family life under Article 8 of the Human Rights Act and the publisher’s right to freedom of expression under Article 10. Neither right has precedence over the other and resolution of the conflict requires an “intense focus on the facts” as per the test set out in McKennitt v Ash.
If the claimant is seeking an interim injunction, the claimant will also need to establish that damages would not otherwise be an adequate remedy and that he would be likely to win at trial.
Section 12 of the Human Rights Act is also applicable when a claimant is seeking an interim injunction for misuse of private information. Section 12 has four features: it seeks to ensure that defendants are notified of an application for an injunction (and thus can be represented at a hearing) unless there are compelling reasons not to; it requires the court to be satisfied that the claimant will establish at full trial that the right to privacy outweighs the freedom of expression in publishing; it requires the court to "have particular regard to the importance of the Convention right to freedom of expression"; and finally it requires the court to have regard to "any relevant privacy code".
In the first instance judgment of the High Court on 15 January 2016, Mr Justice Cranston held in summary that:
- the claimant had a reasonable expectation of privacy in respect of his sexual activities;
- the children's privacy interests were important, although these could not operate as a 'trump card'; and
- there was no matter of 'public debate' inherent in the story as asserted by NGN.
However, Cranston J refused to grant an injunction on the basis that given that the evidence suggested PJS had in engaged in extramarital sexual activities, there was public interest in correcting the image PJS presented that PJS was in a committed relationship.
PJS appealed to the Court of Appeal who on 22 January 2016 granted the appeal based on evidence that PJS and YMA had publicly stated in the past that they had an open relationship and therefore the publication of any extramarital sexual activities could not serve as a 'correction'.
The injunction continued during which time the identities of PJS and YMA were published in the USA and Scotland and were disseminated through social media and the internet. On 12 April, NGN applied to the Court of Appeal to set aside the injunction on the basis that the protected information was now in the public domain.
The Court of Appeal held in summary that:
- knowledge of the story was now so widespread that confidentiality had probably been lost;
- the weight attaching to the claimant's Article 8 rights had also been reduced;
- much of the harm which the injunction was intended to prevent had already occurred;
- whilst the information was still private, publication now would not be a 'shock revelation';
- the rights of the children were a 'significant consideration' but could not be a 'trump card';
- NGN was entitled to publish articles criticising people in the public eye; and
- the court should not make orders which are ineffective.
Accordingly, it agreed to set aside the injunction. PJS immediately appealed to the Supreme Court and the injunction was continued until the Supreme Court handed down its decision.
The Supreme Court's judgment
The Supreme Court found that the Court of Appeal had erred in four respects. First, it had applied the balancing test between Article 8 and Article 10 incorrectly by stating that section 12 of the Human Rights Act "enhances the weight which article 10 rights carry". This was contrary to a number of past cases which have clearly established that neither article shall have preference over the other.
Second, the Supreme Court held that the Court of Appeal had erred in its finding that there was even a limited public interest in the story. Mance LJ went on to effectively demolish the Court of Appeal's reliance on NGN's argument (which it had previously relied upon in Terry and Hutcheson) that the media are entitled to criticise the conduct of individuals even where there is nothing illegal about it. On the contrary, "criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense". The story was ultimately "at the bottom end of the spectrum of importance" and in the absence of any other legally recognised public interest could be "effectively disregarded" in any balancing exercise and was incapable by itself of outweighing the Article 8 rights enjoyed by PJS.
Third, the Court of Appeal had not given due consideration to the level of intrusion and level of invasiveness that discharging the injunction would entail. In this respect the Court of Appeal had focused too narrowly on a quantitative approach regarding how extensively the information was already in the public domain.
Whilst widespread knowledge of the information might well mean that PJS's claim for breach of confidence would fail, this was not necessarily so in respect of a claim for misuse of private information. A claim for misuse of private information is not solely concerned with 'secrets' but the level of intrusion and harassment the claimant will suffer. As noted by Lord Justice Neuberger in his separate judgment, there has been consistent line of case law where injunctions have been justified on the basis of intrusion despite a significant loss of confidentiality.
Citing a number of past cases including JIH and CTB, Mance LJ noted that the repetition of known information on further occasions is capable of constituting further invasions of privacy. In this respect, unrestricted publication would undoubtedly result in a 'media storm' in both online and print media. This would not only disclose the names of the claimants, but go into intimate details rather than just the generalised descriptions which were already in the public domain. The injunction would therefore still serve a useful purpose.
In her separate judgment, Lady Hale held that Court of Appeal had failed to adequately consider the interests of the children who would be affected by such unrestricted publication. It was "simply not good enough" to dismiss children's interests with the "bland statement" that they could not be a trump card.
Finally, the Court of Appeal also erred in holding that whilst PJS was likely to win at trial, it nevertheless left PJS to claim for damages. The Supreme Court held that damages could not be an adequate remedy in the circumstances.
The Supreme Court's concluded that the publication would constitute a serious and injurious breach of privacy and as such PJS was likely to succeed at trial. On that basis, and in light of the factors above, it allowed PJS' appeal and continued the interim injunction.
Lord Justice Toulson disagreed with the majority's findings (with the exception that section 12 of the Human Rights Act had not given more 'weight' to Article 10 in the balancing exercise). Fundamentally, Toulson LJ held that the story's confidentiality had become so well-known that it was now illusory. As a consequence, if the story were made available in print media, it would not make a significant difference to PJS's position. Toulson LJ believed that the court was in danger of being out of touch with reality if it continued to prevent the publication of what was widely known.
In a world where electronic communications allow information to spread like wildfire, it is often likely that identities of anonymised claimants will eventually make it to the public domain. Had the Supreme Court refused the appeal on the basis that widely known information renders an injunction meaningless, it would have undoubtedly sounded the death knell for celebrity privacy injunctions. No sensible prospective claimant would have ever again sought an injunction aware of the fact that one conversation with the wrong person or one tweet could ultimately destroy their claim.
As it is, the privacy injunction has been affirmed by the highest judicial body in the country. In one sense the decision is unsurprising given that it was a relatively straightforward application of existing law which endorsed existing principles. However, it is perhaps the bold terms in which the Supreme Court upheld those principles that is of particular interest.
Firstly, the Supreme Court was unusually robust in its commitment to apply the law in the face of public criticism and in no uncertain terms declared that it would not be bullied by the media. The judgment immediately tackled the press criticism of the injunction with Mance LJ stating that "as to the Mail Online's portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid".
Second, the judgment took apart the media's 'right to criticise' defence and went further to state that such criticism of a person's sexual infidelities has practically no weight in the balancing exercise between Articles 8 and 10. Mance LJ indicated that this type of speech "does not even fall within the concept of freedom of expression under article 10 at all", but then appeared to reign back by accepting that Article 10 was engaged and capable in principle of protecting any form of expression. This provides some very strong guidance for the High Court and Court of Appeal in future cases. On this basis, unless there are other circumstances which come into play (such as correcting a false impression), the balancing exercise will in principle always fall in favour of the claimant when the type of speech at issue is mere sexual infidelity.
Third, the rights of a claimant's children will continue to be a highly relevant factor in the decision to grant a privacy injunction. The Supreme Court was unequivocal in its ruling that children's rights were very important when considering of whether privacy had been infringed.
Fourth, and perhaps most importantly, it is now abundantly clear that widespread public knowledge of the relevant information or claimant's identity is not a necessarily an obstacle to obtaining an injunction. The focus of the court should be on the level intrusion, not simply that the public is aware of a 'secret'. The Supreme Court acknowledged the uncontrollable nature of the internet and that courts need to be prepared to change their approach a consequence. However, in this case the legal position as to PJS's privacy rights was clear and electronic developments as they stand today should not affect that position.
Where does this leave the privacy injunction? Prospective claimants must now be aware that knowledge of the bare facts of the private information they may seek to injunct will be difficult to prevent becoming public, but an injunction which minimises the level of intrusion may be preferable to 'wall-to-wall excoriation' they may suffer if the information is published without any restrictions. In that sense, privacy injunctions can still serve a purpose.
That said, there have been several recent privacy injunctions where the information has not become well known by the public, notably JPH v XYZ and Persons Unknown and AMC v News Group Newspapers both in the second half of 2015.
Toulson LJ's concern that the court risks becoming out of touch with reality is something with which many people will agree, but without any Parliamentary intervention the privacy injunction appears here to stay. Should Parliament intervene, an alternative to privacy injunctions could be, as Toulson LJ suggested, an assurance that there will be adequacy of damages at trial by making exemplary damages available. Privacy damages could be set at or above the level of successful defamation awards. However, whether that approach would effectively discourage the press from publishing stories which breach individuals' privacy is perhaps doubtful when sales of an exclusive 'scoop' can far outstrip even high magnitude damages.