The Supreme Court has upheld an injunction preventing the identification of a celebrity, known in court as PJS, in respect of an extramarital relationship.
Background
Earlier this year The Sun on Sunday, published by News Group Newspapers, was approached by a couple who told reporters that they had had a relationship with PJS. The paper contacted lawyers for PJS informing them that they planned to publish the story, including details of a three-way sexual encounter, and legal proceedings were commenced. PJS’s case was that publication would breach confidence and invade privacy.
A High Court judge initially refused to impose an injunction preventing the identification of PJS by the paper. This decision was reversed by the Court of Appeal on the basis that PJS, who was in an ‘open’ relationship, had an expectation that his sexual encounters would remain private, and publication of the story would result in intense media scrutiny of PJS’s young children.
PJS was subsequently identified on social media, by publications in the US and Scotland, and in articles on various websites. NGN applied to have the injunction set aside, as the information that it protected was already in the public domain. The Court of Appeal granted this application, and PJS asked the Supreme Court to consider the case.
Decision
By a majority of 4 to 1, the Supreme Court justices ruled that the injunction should remain in place pending a full trial.
It was held that the Court of Appeal, in lifting the injunction, had made a “clear error of law” in determining that the provisions of the Human Rights Act enhance the weight of the right to freedom of expression. The case law was in fact found to establish that neither the right to privacy nor the right to freedom of expression has preference over the other, and the question is where the balance falls in light of the specific facts and considerations in that case.
There was found to be “on present evidence no public interest” in the story that would justify publishing PJS’s identity. The court held that “there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time”. Further, it was emphasised that the IPSO Code of Practice, to which NGN has subscribed, provides that publishers must demonstrate an exceptional public interest to override the normally paramount interests of children under 16.
The court also emphasised the importance of distinguishing between PJS’s claims for breach of privacy and breach of confidence. While a claim for a permanent injunction based on confidentiality would face difficulties in light of the wide public dissemination of the information at issue (as in the Spycatcher case), “claims based on a respect for privacy and family life do not depend on confidentiality (or secrecy) alone”; the level of intrusion publication would cause into PJS and his family was also significant, and the court referred to cases in which intrusion had been relied on by judges to justify the grant of an injunction despite a significant loss of confidentiality. The court found it was appropriate for them to adhere to this approach.
Comment
Desmond Browne QC, representing PJS, had earlier told the Supreme Court that he hoped reports of the death of the privacy injunction “have been greatly exaggerated”, and the decision to uphold the injunction suggests that this is the case. Publishers should exercise caution when considering whether to publish stories, particularly regarding details of sexual encounters, about high profile individuals where there is no obvious public interest beyond the fact that they are famous.
However, the case raises wider questions about the effectiveness of injunctions in the age of the internet, given that websites outside national jurisdictions can be read in the UK. Even if granted, an injunction may provide only limited protection.
The trial is expected to take place later this year.