The Supreme Court has upheld an interim injunction preventing a newspaper from disclosing details of extramarital sexual activities of a well-known entertainer, despite widespread disclosure on the internet.
The European Convention on Human Rights (the Convention) provides that everyone has the right to respect for their private and family life (Article 8) and freedom of expression (Article 10).
The UK courts must interpret all legislation in a way that is compatible with the Convention (section 3, Human Rights Act 1998). The court must have particular regard to the extent to which the material has, or is about to, become available to the public; or whether it is, or would be, in the public interest for the material to be published; as well as any relevant privacy code (section 12(4), 1998 Act) (section 12(4)).
P was a well-known person in the entertainment business, married to, and with two young children with, Y, a well-known individual in the same business. N wanted to publish an account of P’s occasional sexual encounters with AB, and of a sexual encounter between P, AB and AB’s partner, CD. P applied for an interim injunction restraining the proposed publication. It was accepted that P had a reasonable expectation of privacy in respect of P’s sexual encounters with AB and CD. However, N, relying on its Article 10 rights, argued that publication of the story was in the public interest.
The High Court refused to grant the interim injunction, holding that P and Y had portrayed an image to the world of a committed relationship, and that there was a public interest in correcting it. P and Y appealed.
The Court of Appeal allowed the appeal. It held that the publication of the article was not in the public interest, and granted an interim injunction restraining N from publishing the proposed article until trial or further order.
A widely-read US magazine then published details of P’s sexual activities, naming those involved. Other publications in the US, Canada and Scotland published similar articles. As a result, details also appeared on numerous websites identifying P and Y by name. Newspapers in England also reported the contents of the redacted Court of Appeal judgment, complaining that they were banned from naming the participants.
N applied to set aside the interim injunction, arguing that the protected information had entered the public domain.
The Court of Appeal decided to lift the injunction. It held that the widespread knowledge of the relevant matters meant that it could not now be said that, when the matter came to trial, P’s Article 8 right would be likely to warrant a permanent injunction. P appealed.
The court allowed the appeal and ordered that the interim injunction be continued until trial or further order.
The Court of Appeal had erred by:
- Holding that section 12(4) enhances the weight which Article 10 rights carry in the balancing exercise.
- Finding that there was a limited public interest in the proposed story. Any public interest in the reporting of sexual encounters of P, however well-known P was, with a view to criticising them, was at the lower end of the spectrum of importance, and had to be disregarded in any Article 8 and Article 10 balancing exercise
- Failing to distinguish between the tort of invasion of privacy and breach of confidence. While a quantitative test was appropriate to assess whether a claim for breach of confidence survived when information was in the public domain, different considerations applied to a privacy claim. Where private information had been disclosed, the repetition of such disclosure could constitute a further tort of invasion of privacy, especially if it occurred in a different medium. The Court of Appeal had not given due weight to the qualitative differences in intrusiveness and distress likely to be involved in unrestricted publication by English media in hard copy as well as on their own internet sites, and had not given the interests of P and Y’s children sufficient importance.
- Concluding that damages would give P practical and effective protection of P’s privacy rights.
The proposed disclosure was likely to involve further tortious invasion of the privacy rights of P, Y and their children, and the invasion was likely to be clear, serious and injurious. While there was a risk that there would be further internet activity aimed at making the injunction ineffective, the legal position, which the court must respect, was clear. There was no public interest in the story and it would involve significant additional intrusion into the privacy of P, Y and their children. The media storm that discharge of the interim injunction would unleash would add a different and more enduring dimension to the existing invasions of privacy.
The decision is a test case for the extent to which the privacy injunction is sustainable at all in the internet age. The court, while confirming that the privacy injunction remains relevant, also acknowledges the difficulties presented by the internet, and the possibility that, despite a court injunction, there may be attempts on social media to make the court’s injunction ineffective. A key factor was the finding that there is a qualitative distinction between fairly widespread disclosure of private information on the internet and its disclosure in different media, in particular in hard copy form.
In the view of some, particularly the media, it is unrealistic to allow a privacy injunction to be sustained despite widespread internet disclosures. Arguably where a story is readily available on websites and Twitter to anyone who wanted to know it, it has lost the essence of confidentiality.
However, the majority decision of the court highlighted the rights of P and Y’s children, and reaffirmed the importance of the Article 8 rights of children affected by disclosure of a story concerning their parents’ private information, an issue which has been a theme in several privacy cases in recent years.
Case: PJS v News Group Newspapers Ltd  UKSC 26.
First published in the July 2016 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.