Case Comment: PJS v NGN, Supreme Court restores interim injunction in landmark privacy case – Sara Mansoori and Aidan Wills.

On 19 May 2016, the Supreme Court handed down its judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26. This much-discussed privacy action brought by a celebrity has generated renewed debate on privacy injunctions.

Following a rolled up hearing in April the Court unanimously granted PJS’ application for permission to appeal and, by a majority of four to one, allowed the appeal against the Court of Appeal’s decision to discharge an interim privacy injunction that has been in place since January 2016. The injunction prevents the identification of PJS and the fact or details relating to the sexual relationship and activities in issue.

Background

The factual background is set out in our earlier case comment. In essence, two people who had engaged in a “three-way sexual encounter” with the claimant in 2011 approached The Sun on Sunday in January of this year with the story. Upon being informed that the newspaper was going to print it, PJS applied for an urgent injunction preventing the publication

The procedural history demonstrates the courts’ recognition of the importance of the right of freedom of expression. In summary:

• PJS’s application for an interim injunction was refused by the High Court on 15 January.
• On 22 January, the Court of Appeal allowed PJS’s appeal and granted an interim injunction. This judgment was made public in mid-March 2016 and is considered in our first case comment on these proceedings.
• On 15 April, the Court of Appeal heard an application by NGN to discharge the injunction. The Court granted this application in a judgment handed down on 18 April but stayed the discharge of the injunction to enable PJS to appeal to the Supreme Court (this decision is discussed in our second case comment).
• PJS appealed to the Supreme Court, which held a rolled up hearing on 21 April 2016. The injunction was maintained pending the Supreme Court’s decision.

After the Court of Appeal granted the interim injunction, the story was published in a US magazine. Further articles appeared in Canada and Scotland. Following the publication of these articles outside the jurisdiction some of the injuncted information appeared on social media.

Against the backdrop of this coverage, the English and Welsh press protested vigorously about their being prevented from publishing information. NGN applied to get the injunction discharged on the basis that the public dissemination of the information meant that a permanent injunction would not be granted at trial.

Decision of the Court of Appeal of 18 April 2016

To provide the context for the Supreme Court’s decision it is worth recalling the Court of Appeal’s reasons for discharging the interim injunction [47]:

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 [PJS’s spouse] all know perfectly well what it is alleged that PJS has been doing.
3. The material which NGN wishes to publish is still private, in the sense that it concerns intimate sexual matters. NGN’s 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.
5. NGN is entitled to publish articles criticising people in the public eye. Therefore it has an article 10 right to publish an account of PJS’s conduct. That article 10 right has to be balanced against PJS’s article 8 right for his sexual liaisons to remain a private matter.
6. As a result of recent events, the weight attaching to the claimant’s article 8 right to privacy has reduced. It cannot now be said that when the day of trial comes, PJS’s article 8 right is likely to prevail over NGN’s article 10 right to freedom of expression, such as to warrant the imposition of a permanent injunction.
7. The court should not make orders which are ineffective. It is inappropriate for the court to ban people from saying that which is common knowledge.

Judgment of the Supreme Court

A majority of the Supreme Court (Lords Neuberger, Mance and Reed, and Lady Hale) were of the view that the appeal should be allowed and the interim injunction restored until trial. Lord Mance delivered the leading judgment, with shorter concurring judgments delivered by Lady Hale and Lord Neuberger. Lord Toulson dissented.

The majority’s reasons for allowing the appeal can be summarised as follows:

1. The Court of Appeal made an error of law in reasoning that section 12 of the Human Rights Act 1998 enhances the weight to be accorded to article 10 rights in the balancing exercise (with article 8 rights) that courts must undertake in an action for misuse of private information: [19] – [20] [51] [65] (Lord Toulson agreed with the majority on this point).  Neither article takes precedent; the justifications for and proportionality of interfering with each article should be considered.
2. The Court of Appeal was incorrect to conclude that there was any public interest in the proposed story, and no such interest should have been considered in the balancing exercise: [21] [65] and [78]. Lord Mance held that any public interest in publishing the story was so limited that it should be “effectively disregarded in any balancing exercise” and he postulated that: “it may be that the mere reporting of sexual encounters of someone like the appellant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under article 10 at all.” [24].
3. The Court of Appeal did not give sufficient weight to the intrusive and distressing effect that unrestricted newspaper coverage of the story in England, both in hard copy and online, would have on PJS and his family: [35] and [51]. As distinct from the law of confidence, the law of privacy protects both the confidentiality of private information and against intrusion into private lives: [29] – [32] and [58] – [62]. The Supreme Court held that the Court of Appeal failed to properly appreciate this distinction and thus failed to give due recognition to the intrusion (and associated distress) that would result from the publication of the story in the media: [26] [35] [51] and [53]. The following passages capture the Court’s reasoning in this regard:
   

    “I consider that the Court of Appeal focused too narrowly on the disclosures already made on the internet, and did not give due weight to the qualitative difference in intrusiveness and distress likely to be involved in what is now proposed by way of unrestricted publication by the English media in hard copy as well as on their own internet sites” (Lord Mance [34]).
   “The publication of the story and the identification of PJS in the electronic media since January 2016 has undoubtedly severely undermined (and probably, but not necessarily, demolished) PJS’s claim for an injunction in so far as he relies on confidentiality. However, I am unconvinced, on the basis of the evidence and arguments we have heard, that it has substantially reduced the strength of his claim in so far as it rests on intrusion” (Lord Neuberger [65] and [57]).

4. The Court of Appeal failed to give adequate consideration to the impact that the publication of the information would have on PJS’s children. Part of Lady Hale’s judgment on the children is redacted but the Supreme Court’s judgment includes the following points:

a) Section 12(4)(b) requires courts to have regard to ‘any relevant privacy code.’ The IPSO Code makes it clear that editors must demonstrate an exceptional public interest to override the normally paramount interests of children: [36] and [78].

b) The Court of Appeal did not refer to the short-term risks of media attention for the children and of the information being communicated to them: [37].

c)  There was a failure to consider the qualitative difference in terms of the effect on children between unrestricted exposure to hard copy media and associated internet sites (which would occur if the story were not injuncted) and the publication of information on the internet (which has already occurred) in circumstances where PJS’s solicitors have been taking steps to restrict access: [37].

d) Children have independent privacy interests that require consideration: [72].

e) There is a need to consider children’s interests on the basis of proper evidence at trial: [78].

5. It is highly likely that an award of damages, even if exemplary damages were to be available, would be an inadequate remedy in this case: [43].

6. Having regard to these considerations and applying section 12(3) of the Human Rights Act, their Lordships held that a trial judge would be likely to grant a permanent injunction: [45] and [68]. Their Lordships considered that without an interim injunction the purpose of any trial of this action would be undermined: [1].

Dissenting judgment

Lord Toulson dissented primarily on the basis that the information is no longer confidential. He held:

“Confidentiality in a meaningful sense can survive a certain amount of leakage, and every case must be decided on its own facts, but in this case I have reached a clear view that the story’s confidentiality has become so porous that the idea of it still remaining secret in a meaningful sense is illusory. Once it has become readily available to anyone who wants to know it, it has lost the essence of confidentiality. The court must live in the world as it is and not as it would like it to be” [86].

His Lordship expressed concern that: “the court needs to be very cautious about granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law by giving the appearance of being out of touch with reality” [88].

Disagreeing that a trial would necessarily be rendered irrelevant by the publication of the story, his Lordship indicated that the courts should be prepared to reconsider Eady J’s decision in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) that exemplary damages cannot be awarded in privacy cases [92].

Comment

Introduction

This is the first privacy injunction case to be heard by the Supreme Court. It represents a considerable triumph for privacy in a digital society which is intrinsically and increasingly corrosive of such rights. By focussing on the protection-from-intrusion aspect of privacy and interpreting section 12(4)(a) of the Human Rights act to give effect to these interests, their Lordships have found a way of maintaining the viability of privacy injunctions in a digital age.

This case has illustrated that social media and easy access to material from other jurisdictions make it almost inevitable that a privacy injunction obtained (and whose existence is public) by a well-known person will be attacked and eroded to some extent. This reality led many (including us) to question whether privacy injunctions can remain viable. However, for the reasons discussed below, the approach taken by the Supreme Court shows that the courts remain willing and able to protect privacy through injunctions.

The Supreme Court’s judgment represents a strong affirmation of the protection-from-intrusion limb of privacy and confirmed the position that had been taken previously by Tugendhat J and Eady J in cases such as CTB.  By restoring the injunction to protect these interests, the Court rendered insignificant the question of the information being widely available/confidentiality having been lost. From a claimant’s perspective, this decision underscores the considerable advantages of misuse of private information, as compared to breach of confidence, as a cause of action for seeking to restrain the publication of information.

As with the Court of Appeal’s first judgment in this case, the Supreme Court’s decision has generated consternation in many parts of the press. Criticisms have ranged from assertions that the press should have the right to report infidelity (with references to the Supreme Court’s decision being a cheaters’ charter); to outrage that the press should be prevented from publishing what can be published in other jurisdictions; and more nuanced concerns that injunctions should not be granted to protect information already in the public domain.

Their Lordships were acutely aware of the criticism directed at the Court of Appeal’s initial decision and the opprobrium that would follow their decision, yet they displayed a willingness to confront the press on privacy. Engaging directly with press coverage of the case, Lord Mance commented: “[a]s to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid:” [3].  His Lordship was also scathing in his characterisation of NGN’s attempt to discharge the injunction, stating:

“News Group Newspapers Ltd’s (“NGN’s”) purpose in applying to set aside the interim injunction is to add extensively and in a qualitatively different medium to such invasions [of privacy], without, on present evidence, having any arguably legitimate basis for this and at the risk only of having to pay damages after a trial:” [1].

The Court was strident in its view that there is no public interest in the proposed story and many will share this sentiment. However, their view will be questioned by those who believe that this accords insufficient weight to the inherent public interest in the freedom of speech, regardless of the content of that speech.

Section 12(4)(a) – a focus on qualitative extent of the availability of information

For practitioners, the most interesting aspect of this decision is perhaps the Court’s interpretation of section 12(4)(a)(i) of the Human Rights Act 1998. This is a provision that courts are required to consider when making decisions on (proposed) injunctions impacting on the freedom of expression. Judges are required to consider the extent to which the material has, or is about to, become available to the public. Lord Mance (with whom the majority agreed) held that this provision:

“does not preclude a court, when deciding whether to grant or lift injunctive relief, from having regard to both

a) the nature of the journalistic material involved and the medium in which it is, or is to be, expressed, and

b) the extent to which it is already available in that medium and the extent to which steps are being or can be taken to remove or limit access to any other publication in that or any other medium:” [34].

This interpretation of “extent” in section 12(4)(a)(i) ties into the Court’s emphasis on looking beyond the quantitative extent of the availability of the information and to consider the qualitative nature of the intrusion associated with the making public of information in different formats: [35] (and in different terms [69]). Different media of publication will have qualitatively different impacts on privacy. Somewhat ironically, it was the intrusion that would arise from publication in the traditional media (as compared to discussion on social media) that was held to be qualitatively different in this case. This reasoning underpinned the Court’s decision to restore the injunction to protect against intrusion.

There is no doubt that this construction goes beyond a strict literal interpretation of section 12(4), which was articulated by Lord Toulson (dissenting). He held that the courts’ task under this section is limited to taking into account “how generally available the information has become from whatever source, be it broadcast journalism, print journalism, the internet or social media:” [89].

The Supreme Court’s emphasis on the medium in which information is/will be available and the qualitative implications thereof might be regarded as the necessary corollary of privacy protecting not only confidentiality/secrecy but also against intrusion. As Lord Mance indicated, a quantitative assessment of the extent of availability is relevant in considering whether confidentiality is lost [25] – this would be relevant in considering an injunction for breach of confidence or founded primarily on the confidentiality ‘limb’ of privacy. Yet in order for the courts to give effect to the protection from intrusion provided by article 8 (in the context of injunctive relief) it appears that there is a need for the courts to consider the mediums in which the information is/will be made available and whether that will have a qualitatively different impact.

This interpretation of section 12(4)(a) is very significant for would-be claimants (and particularly the well-known) seeking both interim and final privacy injunctions. Applying this approach, it may be very difficult for a defendant to get an injunction discharged on the grounds that information is already in the public domain. Taken to its logical conclusion, the Supreme Court’s reasoning leaves open the possibility that the (further) publication of information could be restrained on the basis of protecting against intrusion even if the information is very widely known/common knowledge. The point at which the quantitative extent of the information’s availability would outweigh any qualitative concerns is likely to depend on the facts.

In such circumstances, some may take the view that harassment would be a more appropriate cause of action (depending on the nature of intrusion). Indeed, this potential overlap appears to have been recognised by Tugendhat J in the Ryan Giggs case CTB v News Group Newspapers Ltd [2011] EWHC 1334 (QB): [1] and [3]. The evolution of the boundary between the ‘intrusion’ dimension of privacy and harassment – both of which are relatively new causes of action – is likely to be an interesting area of case law.

Questions of damages in privacy actions

The Supreme Court’s decision opens the door for further argument regarding whether exemplary damages should be available for the misuse of private information (the High Court held that they are not in Mosley v News Group Newspapers Ltd [2008] EWHC 2341 (QB)). Their Lordships were not required to decide this point and the majority expressed the view that, even if such damages were available, they would be likely to be an inadequate remedy. This is undoubtedly an area that is ripe for further argument.

Lord Mance appears to suggest that a claimant’s financial means are relevant when considering the adequacy of damages as a remedy: [43]. This raises the problematic prospect that wealthy claimants may find it easier to secure privacy injunctions on the footing that any damages will be of relatively less significance.

Children’s rights in privacy cases

After recent comments about the claimant throwing his children under a bus and the Court of Appeal’s remarking that children’s rights should not serve as a trump card, this judgment reaffirms the significance of the position of a claimant’s children in considering privacy injunctions relating to their parents.

Claimants with children will be encouraged by Lady Hale’s comments regarding the need for possible impacts on children’s rights to be “properly argued at trial” on the basis of evidence. This dicta is likely to underpin arguments that the impact of a proposed publication on children’s rights cannot be properly considered at the interim stage and that an injunction should therefore be granted pending a comprehensive assessment at trial.

An evolving conception of the public interest in sex lives?

Alongside the Court of Appeal’s first decision in PJS, this judgment may be viewed as part of a broader trend towards rejecting the notion of there being a public interest in criticising infidelity or other conduct regarded as sexually deviant by the mainstream (or at least by certain sections of the press). Lord Mance commented that: “criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense:” [21].

The Court proceeded on the basis that, at this stage, there was no countervailing public interest in the proposed publication as this was not a finding that NGN had challenged. Unsurprisingly therefore this decision contains no discussion of a public interest in correcting false images about celebrities’ sex lives . However, in view of this very pro-privacy decision, it will be interesting to see whether the courts would still take the view that correcting false images can inject a public interest into otherwise private information (see e.g., Ferdinand v MGN Ltd [2011] EWHC 2454 (QB)). We may be witnessing a broader acceptance of sexual pluralism and a concomitant greater latitude in what individuals may say or do regarding their sex lives, before there is a sufficient public interest to justify publishing such details.

Sara Mansoori is a member and Aidan Wills a trainee at Matrix Chambers