In a judgment handed down today the UK Supreme Court, by a majority of 4:1, allowed the claimant’s appeal in the case of PJS v News Group Newspapers ([2016] UKSC 26).
The Supreme Court unanimously granted permission to appeal and allowed PJS’s appeal by a majority of 4 to 1. Lord Mance gave the leading judgment, with which Lord Neuberger and Lady Hale (each of whom gave concurring judgments) and Lord Reed agreed. Lord Toulson gave a dissenting judgment.
The Supreme Court held that the Court of Appeal had made a clear error of law in that it had proceeded on the basis that section 12 of the Human Rights Act 1998 “enhances the weight which Article 10 rights carry in the balancing exercise” [40] In fact, the case law establishes that neither article 8 nor article 10 has preference over the other and what is necessary is an intense focus on the comparative rights being claimed in the individual case (see [20] and [51]).
The Court of Appeal also referred to a ‘limited public interest’ in the story when it had rightly held that there was none in its earlier judgment [21]. There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved (see [24] and [32]).
The Supreme Court held that it was essential to distinguish between the claims for breach of privacy and for breach of confidence. The widespread availability of the information in the public domain may well mean that PJS would face difficulties in obtaining a permanent injunction in so far as his claim is based on confidentiality [57], but different considerations apply to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant.
The question is whether the injunction can still serve a useful purpose. It is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story (see [35] and [63]).
Publication in the media in hard copy would be contrary to the interests of PJS’s children and in breach of the requirement to show an exceptional public interest for the intrusion set out in the Editors’ Code of Practice to which NGN has subscribed (see [36]).
Lady Hale’s judgment discusses this consideration further, partly in redacted form to prevent identification [72-78]
Rights had to be practical and effective. The grant of an injunction is the only remedy of any value to PJS and his family, for whom the invasion of privacy occasioned by further disclosure in the English media, rather than any award of damages, is likely to be the real concern [43].
The central issue was whether the trial judge is likely to grant a permanent injunction. Balancing all these factors, the majority concludeed that PJS is likely to establish at trial that the proposed publication by NGN constitutes a serious breach of his and his family’s privacy rights, with no countervailing public interest on the present evidence, and that he is likely to be granted a permanent injunction notwithstanding the internet and social media publication. Accordingly, the interim injunction was maintained [44-45][68].
(The above is taken from the Court’s Press Summary [pdf])
The judgment hand down can be viewed on You Tube
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