Opinion PJS v News Group Newspapers Ltd

In the CTB case in May 2011, Eady J asked this question. Should the court buckle every time one of its orders meets widespread disobedience or defiance?

His answer to that question was that in a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.

Members of the Court of Appeal (Lord Justice Jackson, Lord Justice Simon and Lady Justice King) have had to consider this quasi constitutional issue in the last week.

The precise issue before them was News Group Newspapers Ltd’s application to discharge an injunction made by members of the Court of Appeal (Lord Justice Jackson, Lady Justice King) in PJS v News Group Newspapers Ltd in January 2016 to protect PJS’s privacy.

The injunction should be discharged, argued the media, because the information is now accessible on the worldwide web. Accordingly, PJS could not have a reasonable expectation of privacy in it.

The disturbing aspect, however, is the role the media has played in making the information “accessible”. A media organisation in the USA chose to publish the private information on 6th April, as did a Twitter user. Since then, the media in England and Wales has given “strong hints” about how the information may be accessed and “whipped up” a “media frenzy” regarding the issue, the court was told.

The Court of Appeal this morning ruled that the injunction order should be discharged. A stay is in place for 48 hours until the Supreme Court is able to indicate whether it will give permission to appeal/continue the stay.

The reason for the Court of Appeal’s decision is that, in its view, the accessibility of the information means that the case does not meet the requirement for an interim injunction, namely that the Claimant is more likely than not to succeed at trial.

Those who value privacy will be hoping that the Supreme Court will step in decisively and make clear that the nature of the modern tort of privacy is to protect against intrusion and harassment as well as to preserve secrecy when appropriate to do so.

If not, a cruel and destructive media frenzy is likely to ensue. PJS, PJS’s spouse and the couple’s children will suffer.

But worst of all, widespread attempts to render the court’s protection ineffective will have succeeded. Two questions for everyone to consider this week. First, do you want the Americans, bloggers and the media to determine what happens to us? Second, do you feel you can rely upon the legislature to take everyone’s views into account and implement changes that accurately reflect those views?