The first privacy injunction case heard by the Court of Appeal since 2011 has recently been published. In PJS v News Group Newspapers ( EWCA Civ 100), the court allowed an expedite appeal against the refusal to grant an interim injunction restraining The Sun on Sunday from publishing an article about a well-known entertainer’s extramarital sexual activities.
The claimant, PJS, is in the entertainment business and is married to YMA, who is a well known individual in the same business. They have young children.
In January 2016, two people who had engaged in a “three-way sexual encounter” with PJS in 2009 approached the editor of The Sun on Sunday with the story. The editor proposed to publish it and contacted PJS’s representatives to inform them of the position. Having been informed of the proposed story, PJS applied for an injunction preventing publication of the information.
The hearing took place before Cranston J on notice and both parties were represented. The publisher argued that the story was relevant to an ongoing debate, and that because the claimant and his partner had put many details of their relationship into the public domain there was a public interest in publishing details of the claimant’s sexual exploits with others.
For his part, the claimant denied that the story was relevant to any public debate or in the public interest. He and YMA explained that they were in a long-term committed relationship but it was an open one and YMA accepted that from time to time the claimant had sexual encounters with others.
Cranston J refused to grant the injunction sought by the claimant, giving a short ex tempore judgment.
The judge accepted that the claimant had a reasonable expectation of privacy regarding his sexual activities; however, it was held that this expectation had been lowered by his own behaviour. Cranston J referred to the privacy rights of the children but stated that the Article 8 rights of the children cannot operate as a trump card.
The judge resolved the second stage balancing exercise in favour of the defendant’s article 10 rights. The injunction was refused primarily because the judge concluded that the claimant and YMA had promoted a public image of commitment and having done so there was
“a public interest in correcting [that image] when the claimant has engaged in the sort of casual sexual relationships as demonstrated in the evidence.”
In recognition of the importance of the issues, Cranston J granted permission to appeal and issued a temporary interim injunction restraining publication for 7 days to give the claimant time to appeal. That appeal was decided on Friday 22 January 2016, two hours before the expiry of the injunction.
In a judgment given by Jackson LJ, the Court of Appeal allowed PJS’s appeal.
Having set out the well-established legal principles applicable to an action for misuse of private information, the court highlighted two significant shortcomings with Cranston J’s judgment, which, notwithstanding the Court of Appeal’s decision in AAA v Associated Newspapers  EWCA Civ 554 (see ), justified reopening the balancing exercise on appeal:
- Cranston J identified the rights of the claimant’s children as being a relevant consideration in the balancing exercise but he had failed to explain how those rights were taken into account in reaching his decision .
- On their evidence, the claimant and YMA are a committed couple and the claimant’s occasional sexual encounters with others did not detract from this. Accordingly, “a bundle of press articles showing the claimant and YMA’s commitment to each other does not present a false image requiring correction” .
Undertaking the balancing exercise, the Court of Appeal made the following findings in relation to the proposed story’s potential to correct a false image in the public interest:
“[T]he picture which emerges from the publicity material is not one of total marital fidelity, but rather a picture of a couple who are in a long term, loving and committed relationship. On the present evidence, that image is an accurate one” .
“If the defendant publishes the proposed story, this will not set the record straight in any material respect. It will simply reveal that one feature of the claimant’s and YMA’s long term relationship is that the claimant is allowed to have occasional sexual encounters with others. That would provide supplementary information, but it would not correct a false image.” .
Regarding the public interest in “kiss and tell” stories about public figures, the Court of Appeal explicitly adopted the position taken by the Strasbourg Court in the recent Grand Chamber decision of Couderc and Hachette Filipacchi Associés v France ( ECHR 992) in which it was held that stories that merely satisfy readers’ curiosity concerning a public figure’s private life do not serve the public interest. The court considered that the proposed story fell into this category .
Further, and in agreement with Cranston J, the Court of Appeal rejected the defendant’s contention that proposed publication would advance the public debate or provide support for competing opinions .
Having regard to these considerations, the court held that the claimant’s article 8 right to privacy outweighed the defendant’s article 10 rights; it commented that, if published, the proposed story would be “devastating” for the claimant . The privacy rights of the claimant’s children were also held to be a relevant factor in the balancing exercise . Accordingly, the court concluded that the claimant was likely to establish that the publication should not be allowed, meaning that it satisfied the test in s12(3) of the HRA 1998 for granting interim relief where article 10 is engaged.
While there have been more threatened and actual privacy injunctions recently, this is the first to reach the Court of Appeal since 2011.
It demonstrates, firstly, the importance that the court attributes to the rights of children and, secondly, the need to analyse carefully the image (if any) a person is presenting of themselves in the media and whether it is a false one.
On the first point, the Court of Appeal’s decision provides further recognition of the importance of considering the rights of children when conducting the balancing exercise in relation to (proposed) revelations about their parents. Jackson LJ underlined the need to consider not only the short-term privacy implications for children but also the longer-term implications of private information being available on the internet . The court recognised that the ongoing online presence of such material could give rise to future invasion of a child’s privacy rights. This acknowledgement of the need for the courts to have regard to what might be termed the ‘deferred collateral damage’ to children’s privacy caused by the disclosure of information about their parents is likely to especially useful to claimants.
On the second point, the Court of Appeal made a number of points about the issue of public figures presenting and correcting (false) public images:
- It emphasised that the principle of there being a public interest in the media setting the record straight where a person has presented a false image to the public only comes into play where an “individual has set out to present a false picture” . This suggests that an individual must be found to have deliberately portrayed a false image (i.e. deliberately misled the public) before the media would be justified in publishing private information on this basis.
- Moreover, it appears that it will be necessary for defendant’s to show that they are setting the record straight in a “material respect” .
- The court also underlined the importance of having regard to the evidence of a claimant and his/her partner in determining whether any false image has been conveyed to the public .
- The court rejected the suggestion by the defendant that individuals are under an ongoing duty to correct an image, portrayed in articles published online, that later becomes false . In view of the quasi-permanent presence of media articles on the internet, any such duty would have serious implications for the privacy rights of public figures and many will welcome this as a pragmatic and sensible approach. It may have had implications in cases such as Ferdinand v MGN ( EWHC 2454 (QB)), in which it was the image portrayed by Rio Ferdinand in an article 2006 that was found to be false and “while that image persisted” there was a public interest in correcting it.
This decision is likely to be assist claimants – particuarly high-profile individuals – who are seeking to prevent newspapers publishing details about their private lives. This case demonstrates that the courts are willing to take a liberal view of how an individual chooses to conduct his or her private sexual life.
Sara Mansoori is a member and Aidan Wills a trainee at Matrix Chambers