On 19 May 2016, the Supreme Court handed down its judgment on the appeal against the Court of Appeal’s decision to set aside an interim injunction preventing the media in England and Wales from publishing the identity of a celebrity (PJS) and details of their extramarital sexual activities.
The case has been widely reported by the media since the Court of Appeal first granted an interim injunction in January 2016.
The identity and activities of PJS appear to be widely known, having been published in publications in the US, Canada and Scotland and, additionally, being widely reported online. In light of this, News Group Newspapers (“NGN”) applied to have the injunction set aside.
In April, Lord Justice Jackson, hearing NGN’s application, decided that the injunction should be lifted. However, before this occurred, PJS was given the opportunity to appeal the decision to the Supreme Court. PJS duly did this arguing that the Court of Appeal had misapplied the law on privacy.
The Supreme Court has allowed the appeal and ordered that the interim injunction remain in place until trial or further order.
The judgment raises some interesting points on the law of privacy and, particularly, the factors that will be considered in weighing up an individual’s rights under Article 8 of the European Convention on Human Rights (“ECHR”) (the right to privacy and family life) and the media’s right of freedom of expression under Article 10 of the ECHR.
The Court of Appeal had held that, in light of the disclosure of PJS’ identity in other jurisdictions and online and by virtue of section 12(4) of the Human Rights Act 1998, greater weight should be given to freedom of expression than to the right to privacy and family life. However, the Supreme Court held that this was a misapplication of the law and ran contrary to previous Supreme Court authority namely In re S (A Child)  UKHL 47. Neither Article 8 nor Article 10 should be given preference over the other.
In addition, the Court of Appeal had reached its decision by reference to the position under the law of breach of confidence. Indeed, Lord Justice Jackson had noted that claims for confidentiality generally failed once information had passed into the public domain. While he noted that a claim for misuse of private information could survive such a publication, it would depend on how widely known the facts were. If the fact was widely known, then the subject may still have a claim for damages but his claim for an injunction is weakened.
The Supreme Court held that there had been an error by the Court of Appeal by assimilating a claim under the tort of invasion of privacy too closely with a claim for breach of confidence. In doing so, the Court of Appeal had erred by applying a quantitative test to assess whether the claim would survive the information being in the public domain. Applying a quantitative test would not give sufficient consideration to the damage and distress that could be caused by the repetition of the material. Indeed, the repetition was capable of constituting a further tort of invasion of privacy, particularly if made via a different medium.
The Supreme Court concluded that lifting the injunction would generate a “media storm”. In particular, the Court appeared to be concerned about the intrusion and distress that this would cause to PJS’ children. While, as stated by Lady Hale, the children “cannot always rule the day”, their interests did deserve greater attention than had been given by the Court of Appeal. Indeed, the children would have independent privacy interests of their own.
The Court of Appeal also appeared to have relied upon the notion that the media should be entitled to criticise individuals even when there is nothing illegal about their actions. The Supreme Court did not dispute this but noted that “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 Court was keen to avoid the situation where the media could use the criticism of supposed infidelity as a guise under which to disclose ‘kiss and tell’ stories of no public interest in the legal sense.
The decision is one that has, not surprisingly, attracted censure by media organisations and commentators, but will be welcomed by advocates for the right of privacy. The decision demonstrates that, even in the online age, the law will still protect against further invasion of privacy by the English media even if those with interest in the story are able to find the information from other sources. There is a distinction between information being widely available online and in other jurisdictions and the intense media intrusion of allowing publication in a national newspaper. The difficulty will be drawing the line on a case by case basis.
While some may argue that, like King Canute, injunctions of this nature are futilely ‘fighting against the tide’ of online disclosure, the Supreme Court held that the law was clearly in favour of maintaining the injunction. Paraphrasing Lord Mance, although the law may be portrayed as an ass, if that is the price of applying the law, it is one which must be paid.