Supreme Court considers whether an injunction can still serve a useful purpose if defeated in part

The Supreme Court has today allowed an appeal by a celebrity (PJS) seeking an injunction preventing publication of details of his private life, by a majority of four to one: PJS v News Group Newspapers Ltd [2016] UKSC 26.

In its decision, the Supreme Court has sought to balance what it considers a robust prima facie case for the right to privacy against the practical limitations facing the enforcement of court orders in the modern world. The court's focus on whether an injunction can still serve a useful purpose if defeated in part is useful to claimants.

The decision also emphasises the distinction between the law of confidence and of privacy.  In the case of confidential material, whether an injunction is likely to be lifted will depend on the proportion of the confidential material that has already been disclosed. The court contrasted this with invasion of privacy, where an injunction may be granted if it will prove useful in preventing intrusion and distress.

Considerable emphasis was placed on the Article 8 right to a family life, with significant weight given to the potentially harmful effects of publication on PJS's children.  The court dismissed media complaints that children can be used as "trump cards" by parents seeking injunctions.  In reaching its decision, the court considered the children's own Article 8 rights and reinforced for newspaper editors the exceptionally high bar which must be met to justify infringement. However the decision raises the question of whether the outcome of the appeal might have been different had PJS not had children.

Alan Watts, Neil Blake and Rebecca Murtha consider the decision further below.

Background

The celebrity applicant originally obtained an injunction preventing publication of allegations that he had engaged in sexual relations outside of his committed but open relationship to another celebrity. The potential publisher argued that this behaviour was inconsistent with the public image of commitment cultivated by the couple, and that it was entitled to publish the information to correct that image. The injunction restraining publication was granted on the basis that commitment does not necessarily entail monogamy, so there was no false public image to correct.

The Court of Appeal had lifted the injunction on the basis that, inter alia: (a) knowledge of the matters became widespread, particularly on social media and through foreign publications, and the court should not make orders which are ineffective; and (b) the harm the injunction was intended to prevent had already occurred.

Decision

The Supreme Court allowed the appeal and held that the injunction should be upheld pending trial or further order.

Public interest and freedom of expression

The Court of Appeal made an error when deciding the weight to accord the competing ECHR rights of freedom of expression (Article 10) and the right to respect for private and family life (Article 8). The Supreme Court held that freedom of expression did not take precedence and that both rights should be given equal weight in coming to a judgment in a given case.

The Court of Appeal also erred in finding that the story was of "limited public interest" as, absent additional factors, there is no public interest whatsoever in the private sex lives of celebrities. In any event, in determining what weight to give freedom of expression over the right to privacy, the Supreme Court held that cases involving criticism of private lives are "at the bottom end of the spectrum of importance" when compared with, for example, freedom of political speech or exposing conduct  bearing on the performance of a public office.

The enforceability of court orders

Giving the leading judgment, Lord Mance held that while a large proportion of the population knew the identity and details of the story, this did not in itself mean that the injunction should be lifted. The law of privacy is not just about keeping secrets – it is also concerned with intrusion.  Wall to wall coverage in the national press plastered on every newsstand is more intrusive than disclosures on the internet. An injunction still serves a useful purpose in limiting distress and indeed is the only remedy of value in the circumstances. While the court accepted that enforcing the injunction has been difficult, Lord Neuberger said that this was not a reason to discharge an injunction designed to protect legitimate legal rights "even when their protection is difficult or unpopular in some quarters".

Relevance of children

The arguments advanced by PJS that their two children would be put at risk by increased harassment were accepted as highly relevant.  The judgment draws particular attention to the IPSO Code which requires editors to prove "exceptional public interest" to run a story that may adversely affect an individual's children.

Comment

Whether NGN will press ahead to a full trial remains to be seen.  While the Supreme Court (with the exception of the dissenting Lord Toulson) indicated that on the present evidence a permanent injunction would likely be granted at trial, NGN may consider even a slim prospect of the court finding otherwise offers a potential route to qualifying today's judgment, which will have come as a disappointment to all reporters of celebrity gossip.