The decision of the Supreme Court of England and Wales to uphold a privacy injunction granted to a celebrity, known only as PJS, caused significant media excitement in May of this year. The British press overwhelmingly took the view that the injunction was a strike against both free speech and common sense and whilst PJS has the decision he sought, it can be viewed as a pyrrhic victory when the immense publicity surrounding the case is taken into account.
PJS sought and obtained the injunction to prevent the details of his extra-marital sexual conduct from being published. After a series of hearings and applications to the court, the Supreme Court heard the case and caused genuine surprise to most commentators by keeping the injunction preventing publication of PJS’ identity in place, despite the fact that his name and details of the story about him were widely known thanks to overseas and social media publication.
Privacy injunctions – some background
PJS obtained an anonymised injunction on 22 January 2016, when the Court of Appeal overturned a High Court decision that would have permitted publication by the Sun on Sunday of details about his extra-marital affairs. The Court of Appeal found that in the circumstances of the case, PJS’ right to privacy (particularly when combined with that of his children) outweighed the right of the press to freely publish details of his private life. We reported on the original decision here.
Anonymised injunctions are often confused with so-called ‘super injunctions’; the former prevent the publication of the identity of a party or parties and possibly details of an intended press story, whereas super injunctions prevent even the reporting of the fact that an injunction has been handed down. Super injunctions are highly controversial since the inability to even confirm their existence makes it difficult for media outlets to obtain enough information to challenge them in court, leading inevitably to a serious restriction of free speech.
When Dutch company Trafigura obtained a super injunction preventing publication of details of its alleged involvement in an environmental disaster, the existence of the injunction was revealed when Paul Farrelly MP tabled a Parliamentary question about it, bringing it to public attention whilst protected by parliamentary privilege. The case was not a ‘privacy’ injunction as such, relating instead to information about a corporate body, but the origins of the right to privacy in English law sit in the law of confidence, which protects a right to maintain secrecy in information where there is a reasonable expectation of it and a duty to maintain confidentiality on the part of a party receiving the information.
The Trafigura case caused a legal scandal that ultimately led to the exposure of a number of super injunctions, primarily involving the sexual activities of celebrities rather than secret or damaging commercial information. It is no coincidence that this all happened in 2009, a time when social media had become firmly established as a method of news reporting as Twitter users, in particular, showed little compunction about breaching the terms of super injunctions and sharing the identities of claimants with the world.
Following a degree of outrage at the practice, the courts have become increasingly reluctant to hand down super injunctions in recent years. Claimants like PJS have to make do with anonymised injunctions and accept the greater risk that details of the case will create a public appetite to uncover their identities.
On 6 April 2016, a US magazine published details of the allegations against PJS. An injunction granted by an English court has little or no value outside the jurisdiction and will not be respected by US publishers. Within days of the first publication, similar articles were produced by other American, Canadian and Scottish publications. On 15 April the Court of Appeal heard a new application from News Group Newspapers (NGN) to overturn the injunction on the basis that the protected information had entered the public domain and therefore NGN’s right to publish trumped PJS’ right to privacy. The Court of Appeal granted their application but also allowed an appeal by PJS to the Supreme Court, keeping the injunction in place until the Supreme Court ruled otherwise.
Supreme Court decision
The Supreme Court heard arguments from both sides on 21 April and announced that it would consider the case and hand down judgment at a later date. Judgment was finally handed down on 19 May and to the further surprise of many, the appeal was allowed, meaning that the injunction protecting PJS will remain in force until a full trial of the claim or some further order.
Handing down the Court’s decision, Lord Mance emphasised that the Court of Appeal had erred in suggesting that the rights of NGN to freedom of expression would outweigh the right to privacy enjoyed by PJS and his family. The rights are of equal weighting and, taking into account the factors set out in section 12(4) of the Human Rights Act 1998 (the availability of the information, the public interest and any privacy code), the Court found that there was no public interest in permitting publication, repeating the old adage that public interest does not equate to whatever the public finds interesting.
The Court has made it clear that even very famous people are entitled to a degree of privacy. The Supreme Court’s judgment states that “kiss and tell stories which do no more than satisfy readers’ curiosity about the private lives of other persons however well-known to the public, do not serve any legally recognised public interest”. In his introduction whilst handing down the judgment (video available here), Lord Manse suggested that the limited exceptions to this general rule might occur where there is a need to correct a misleading public impression created by the individual or a suggestion of abuse of public office – neither of which applied in this case.
The end of the ‘kiss and tell’ story?
Many people, including many lawyers, were surprised by the decision of the Supreme Court. In maintaining the injunction in the face of significant foreign press and social media coverage of the identity of PJS, the Court has attempted to stand firm in the face of public opinion and, some have said, logic. This was the view of Lord Toulson who alone of the five Justices gave a dissenting judgment, expressing concerns that public respect for the law will diminish if the Court and its decisions appear to be out of touch with reality.
However, as the majority of the Supreme Court has pointed out, discharging the injunction and allowing publication of the story would make a trial effectively pointless, since no award of damages can make up for a complete loss of privacy of the sort that PJS and his family would doubtless experience. Lady Hale in her concurring judgment pointed out that the rights of PJS’ children are of more than peripheral importance in the case and were the injunction to be lifted, there would be intense media coverage that would be permanently available online and would affect them for many years.
Perhaps the most interesting point comes out of Lord Toulson’s dissenting judgment. Although he did not agree with the majority decision to uphold the injunction, he did suggest that the principle that exemplary damages cannot be awarded in privacy cases may be subject to change if the courts think such awards to be necessary and proportionate to deter flagrant breaches of privacy. Therefore, even in cases where an injunction is not awarded, the courts may start to place a higher value upon the privacy of claimants.
Although the decision and the attitude of the Court will bring comfort to those who are faced with the prospect of legal action to protect their privacy, it remains the case that English privacy injunctions cannot be relied upon in other jurisdictions, even Scottish publications consider themselves free to publish content protected by an injunction in England and Wales.
We do not believe that this case will lead to the death of kiss and tell stories as some have predicted. Individuals with international reputations may be able to obtain privacy injunctions but in the modern world it will only provide a temporary solution once their story is out there. Increasingly, injunctions are becoming stories in themselves, only serving to intensify media interest in the individual concerned. We believe that this is likely to deter many claimants from seeking an expensive judicial remedy, which has been proven to have only limited value.