Earlier this week the Court of Appeal allowed NGN’s application to set aside an interim injunction preventing the reporting of details of a well-known celebrity’s sex life (PJS v News Group Newspapers Ltd  EWCA Civ 393). On Thursday, the Supreme Court will decide whether or not to grant PJS permission to appeal and, if so, whether the appeal should be allowed.
The issue to be considered by the Supreme Court is whether the Court of Appeal was right to set aside the order preventing the reporting of the story by The Sun on Sunday. The order was set aside as a result of the publicity relating to the case, both in this jurisdiction and abroad, in circumstances where it was not disputed that the original injunction was properly granted. We wrote an Inforrm blog post on the first judgment here.
The Court of Appeal’s judgment and the potential appeal raise important issues about the distinction between claims for confidence and those for misuse of private information; the impact of public domain information on such claims; and whether it is possible to have an effective article 8 remedy in an internet age in which global publications are easily accessible online.
The judgment of the Court of Appeal
Last week NGN made an application to have the interim injunction – originally granted in January – set aside on the basis that the protected information was no longer either confidential or private as a result of the widespread publicity both abroad and online in this jurisdiction.
The Court of Appeal noted that neither party disputed that the court had correctly carried out the exercise of balancing PJS’s article 8 rights against NGN’s article 10 rights, in accordance with established principles and on the evidence as it then stood . The starting point was therefore that the original interim injunction was correctly granted.
The issue before the court at a hearing last Friday was whether there had been a sufficient change of circumstances to warrant setting aside the order. The Court of Appeal “discarded swiftly” an argument raised by NGN that the order should be set aside on the basis that the current litigation had triggered a public debate, stating:
“It cannot be permissible for the media to stir up a debate about an injunction to which they are subject and then rely upon that debate as a ground for setting aside the injunction” .
The court went on to consider the application of section 12 of the Human Rights Act 1998 and the fact that, pursuant to section 12(4)(a)(i), one of the matters to which the court must have regard is the extent to which the material has, or is about to, become available to the public.
In conducting its analysis the court considered the distinction between claims based on confidentiality and claims based on misuse of private information. While claims for confidentiality generally fail once the information has passed into the public domain (see Attorney General v Guardian Newspapers (No 2)  1 AC 109), the law provides greater protection to privacy rights. However, the court stated that the extent of that enhanced protection is less clear.
The court reviewed certain authorities that have grappled with this problem, including: McKennit v Ash  EWHC 3003 (see ); Rocknroll v Newsgroup Newspapers Ltd  EWHC 24 (see  and ); and Mosley v Newsgroup Newspapers Ltd  EWHC 687, where Eady J observed:
“Nevertheless, a point may be reached where the information sought to be restricted, by order of the Court is so widely and generally accessible ‘in the public domain’ that such an injunction would make no practical difference.”
Jackson LJ held that, in his view, the correct analysis is that a claim for misuse of private information can and often will survive when information is in the public domain but it depends upon how widely known the relevant facts are :
“In many situations the claim for misuse of private information survives, but is diminished because that which the defendant publishes is already known to many readers. The publication is an invasion of privacy and hurtful for the claimant, but is not as egregious as it would otherwise be. That does not deprive the claimant of his claim for damages, but it weakens his claim for an injunction.”
Here, despite the court finding that the story which NGN proposed publishing being likely to be a breach of PJS’s article 8 rights , the fact that the information has become widely known (and accessible) was relevant to the court’s exercise of discretion in granting/maintaining the injunction. In conducting this exercise, the Court of Appeal decided that it was not “likely” that a permanent injunction would be granted at trial. Jackson LJ gave seven reasons for reaching this conclusion :
1) Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost.
2) Much of the harm which the injunction was intended to prevent has already occurred. The relatives, friends and business contacts of PJS and YMA all know perfectly well what it is alleged that PJS has been doing. There have been numerous headlines referring to the matter, such as “celebrity love cheat” and “Gag celeb couple alleged to have had a threesome.” The court held that many readers know to whom these headlines refer.
3) While the material is still private, PJS’s article 8 rights are engaged and the planned publication in England will be a further unwelcome intrusion into the private lives of PJS and his family, it will not be a shock revelation, as publication in January would have been. The intrusion into the private lives of PJS and his family will be an increase of what they are suffering already.
4) If the interim injunction stands, newspaper articles will continue to appear re-cycling the contents of the redacted judgment and calling upon PJS to identify himself and websites discussing the story will continue to pop up.
5) The need to balance article 8 rights against article 10 rights means that there is a limit to how far the courts can protect individuals against the consequences of their own actions.
6) As a result of recent events, the weight attaching to the claimant’s article 8 right to privacy has reduced.
7) The court should not make orders which are ineffective.
As far as PJS’s children are concerned, the court found that the couple’s children were inevitably going to find out the information whether or not an injunction was granted and therefore this was now a less material consideration .
While many will agree with Jackson LJ’s comment that it is “inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge,” it is necessary to stand back and ask whether that should that be the case where that information is private, a court has already determined that there is no overriding public interest in its publication, and where each publication is going to cause unwelcome intrusion and distress? A further question arises as to whether the fact that people outside this jurisdiction or online have breached PJS’s privacy rights (assuming that to be the case), means that anyone in this jurisdiction should now be able to do so? This seems fundamentally unjust. Moreover, some would argue that the purpose of an injunction in a privacy claim such as this is to prevent intrusion and harassment rather than the disclosure of a secret. That purpose may often outweigh the article 10 rights of the media.
As this case demonstrates, the internet has made it increasingly difficult to maintain an injunction preventing the publication of private information because once information starts to appear online it spreads like wildfire. Jackson LJ summed up the challenge faced by claimants in his description of the measures taken by PJS since the information started to appear online :
“The claimant’s solicitors have been assiduous in monitoring the Internet and taking steps, wherever possible, to secure that offending information is removed from URLs and web pages. But in truth that was a hopeless task. The same information continued to appear in new places. Also tweets and various forms of social networking ensured that the material circulated freely.”
To a considerable extent, the internet has rendered meaningless jurisdictional boundaries. Yet the courts’ jurisdiction – and their capacity to safeguard privacy through injunctive relief – stops at those boundaries. Information nominally ‘published’ abroad is likely to be available in this jurisdiction and, as the Court of Appeal’s decision demonstrates, the availability of that information goes to the question of whether an injunction should remain in place. Information published abroad may be all that is required to ignite the metaphorical wildfire.
The Court of Appeal appears to have accepted that in such circumstances any injunction would be pointless and the remedy is in damages. Certainly, this is one remedy that can be pursued, but the truly effective remedy to protect one’s privacy is to prevent the information from being published in the first place. However, for celebrities and high-profile individuals trying to protect private information – particularly salacious details about sexual matters – that does not appear possible with the law as it stands. This is particularly so in the light of the Court of Appeal’s judgment. While a claimant might have a legally sound case for obtaining an injunction, the very act of obtaining one is likely to attract attention and interest leading to the information being published online and/or abroad. This is likely to undermine the injunction, leading to its discharge and even greater coverage in this jurisdiction of the very private matters that a claimant seeks to protect. There is therefore no effective protection for their article 8 rights.
The alternative option of allowing the threatened publication (and invasion of privacy) and then suing for damages is unlikely to be attractive to claimants because any trial would proceed on the basis that the published information is in the public domain. This would again draw attention to the very matters sought to be protected. Some have suggested that the revival of the much criticised ‘super injunction’ would be one way forwards.
We won’t have long to wait to find out what happens in the next instalment of this legal drama – and if you miss the live UKSC broadcast you can always watch it on catch up.