In what many will see as a shock judgment, the Supreme Court has resisted massive media, internet, and political pressure and upheld an anonymised privacy injunction which protects the identity of a celebrity couple.
The high profile couple, whose identity is widely known took the case up to the highest court in England and Wales, notwithstanding that the effectiveness of the privacy injunction they obtained from the Court of Appeal in January ( EWCA Civ 100) had been very substantially undermined by the publication of their identity in many countries outside England and Wales, including Scotland.
The media have had a field day with the story. Politicians have also been wading in to call for a rebalancing of English privacy laws to prevent this kind of “fiasco” happening again. In fact, this debate has led to a far more interesting story than the one the couple tried to prevent in the first place and one that raises serious questions as to how anonymity orders can enforced in today’s social media society where information can be leaked and shared around the world in seconds, irrespective of variances in national law.
The key issue
Unlike in most privacy injunction cases, the issue the Supreme Court had to grapple with in PJS was not whether the injunction should have been granted in the first place; it was accepted by both sides in the Supreme Court that the balancing act conducted by the Court of Appeal (when overturning Mr Justice Cranston’s original refusal to grant the injunction in January) was carried out correctly and that any public interest arguments in favour of publication did not outweigh the privacy rights of the Claimant and his family.
Rather, the issue, much like in the case of a famous Premier League footballer back in 2011, was whether the identity of the Claimant and his high profile partner should remain anonymous in circumstances where it was already widely known in England, thanks to publication of the story in the US and on multiple websites around the world.
The Court of Appeal judgment
In his leading judgment in the Court of Appeal Lord Justice Jackson said that
“the court should not make orders which are ineffective” and it would be “inappropriate…for the court to ban people from saying that which is common knowledge.”
On this basis, and for various other reasons, the Court of Appeal concluded that the Claimant was not “likely” to obtain a final injunction at trial in accordance with the test set out in section 12 of the Human Rights Act 1998 (“HRA”) and the judgment of Lord Nicholls in Cream Holdings v Banerjee ( 1 AC 253), and therefore lifted the injunction that it had previously granted.
In both the Court of Appeal and the Supreme Court, much was made by the Claimant of the media’s alleged attempts to whip up a media frenzy to render the injunction pointless. However, Lord Justice Jackson in the Court of Appeal found difficulty with this argument on the basis that regardless of what the media was saying on the issue “the Internet and social networking have a life of their own” and “the court has little control over what foreign newspapers and magazines may publish.”
But there was little analysis in the Court of Appeal’s nine page judgment of whether an injunction would in fact protect the Claimant from further intrusion or whether there were other steps that the Claimant could take to prevent such intrusion, such as by targeting search engines in the way that Max Mosley did last year in his action against Google to prevent dissemination of private material upon a search of his name. Indeed, the Supreme Court recognised that the Claimant has already had some success in having some of the coverage geo-blocked.
There was also little analysis by the Court of Appeal as to the extent that news coverage of the lifting of the injunction would cause further intrusion to the celebrity couple and their children.
The Supreme Court judgment
The Supreme Court has carried out a far more careful analysis and has taken its time arriving at its much awaited decision, notwithstanding that the cat is out of the bag and speculation as to the identity of the claimant continues daily on Twitter and other websites. Their Lordships’ dilemma was clear: Do they agree with the Court of Appeal and admit defeat to the media and the internet? Or do they allow the Claimant to protect what little privacy there is left to protect in order to avoid the precedent that anonymity orders can be blown apart by foreign publications and social media? In the end, it made a very brave decision, and one that will be widely ridiculed in the media.
In reaching their decision ( UKSC 26), their Lordships found that the Court of Appeal had erred in a number of ways. In particular, it had wrongly directed itself that section 12 of the HRA enhanced the weight to be given to Article 10 rights in the balancing exercise, when the case law established that neither Article 8 nor Article 10 has preference over the other. Secondly, the Court of Appeal was wrong to refer to a “limited public interest” in the story, finding that there is no public interest at all 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.”
But perhaps the decisive factor was that the Court of Appeal did not have sufficient regard to the “media storm” that would follow publication of the celebrity couple’s identity if the injunction was lifted. Their Lordships clearly felt that all was not lost for the celebrity couple and that they would still be likely to obtain an injunction at trial to prevent further intrusion, notwithstanding the widespread coverage so far.
But will this judgment really make any difference to future privacy injunctions? We learnt back in the “Super-injunction Spring” of 2011 when many celebrities and public figures were outed as having obtained anonymous injunctions, that there is little point in trying to remain anonymous if the Claimant is newsworthy.
In order to obtain an anonymised injunction against the press (even a “super-injunction”) numerous people have to know the identity of the claimant for it to be enforced: at the very least the Claimant, any media who have the story (including the editor, news desk, and in-house legal team), the Court (including not just the judge but the court ushers), and both sides’ lawyers.
Then there are the people that the Claimant chooses to tell, such as close family and friends (who are the far more likely source of a leak). It only takes one of these insiders to tell a friend or spouse down at the pub or publish an anonymous tweet to get the rumour mill going. It is therefore a brave claimant who takes on the risk of obtaining an anonymous injunction and serving it on the press or any other parties. It is for this reason that we haven’t seen too many privacy injunctions against the press since 2011 and there are unlikely to be very many in the future.
In addition to protecting their identities, it is also unrealistic for celebrities to think that they can conceal the mere fact of a relationship. If enough people know about the relationship such that the story gets in to the hands of the media, the chances of it not circulating further online or in social circles are very slim, whether an injunction is obtained or not.
But there is a big difference between on the one hand the identity of the claimant and the mere fact of a relationship and, on the other hand, the details of that relationship, which might include nude photographs, intimate text messages, and other obviously private material which although interesting to some are unlikely to be necessary for a public interest story to be made out.
Even politicians and the media might agree that these intimate details should be kept private, whether they have been posted on Twitter or not. We may therefore continue to see the odd brave celebrity attempting to obtain an injunction to protect these details from disclosure to save further embarrassment and intrusion, even if the celebrity has to be open about the fact that they are seeking such an order and face some tabloid ridicule for doing so.
Ashley Hurst is a Partner specialising in media and internet disputes at Osborne Clarke LLP