Privacy injunctions in a viral world

A free-standing right to privacy in the UK and the celebrity threesome everyone already knows about???

3 feet in a bed

If you believe everything the UK tabloid press tells you the interim anonymised injunction in place between PJS v NGN is utterly pointless.

Unfortunately for the UK tabloid press, in particular – The Sun on Sunday, the Supreme Court did not agree and allowed PJS’ appeal against the Court of Appeal’s decision of 18 April 2016 (to allow the interim injunction it granted on 22 January 2016 to be set-aside). The Supreme Court in a 4-1 majority found that the interim injunction should be continued until trial or further order.

This case is of particular importance as it is the first time that the Supreme Court – the most senior court in the UK for civil cases – has ruled on a privacy case.

Facts

PJS is the spouse of a well-known person in the entertainment business. PJS is married to YMA and they have two young children together.

From 2011 onwards, PJS allegedly engaged in extra-marital sexual activity with AB on several occasions.

On another occasion PJS purportedly invited AB and AB’s partner – CD – to take part in a threesome with him. AB and CD agreed.

The Sun on Sunday became aware of PJS’ liaisons with AB and CD and informed PJS that they intended to publish an article detailing AB and CD’s experiences.

Injunction to restrain publication

PJS and YMA’s lawyers applied to the High Court in January 2016 for an anonymised interim injunction to restrain publication of the story.

The High Court refused to grant the interim injunction as they held that PJS and YMA had portrayed to the world that they were in a committed relationship and that there was a public interest in correcting this perception.

PJS appealed the High Court’s decision to the Court of Appeal and on 22 January 2016 the Court of Appeal granted an interim injunction restraining publication until trial or further order. The Court of Appeal granted this injunction as they found that publication of the proposed article was not in the public interest.

The interim injunction remained in place until the Court of Appeal’s decision on 18 April 2016 (following a hearing on 15 April 2016) to lift the injunction. This decision was made following the publication on 6 April 2016, by a widely-read magazine in the US, of an article including PJS’ exploits in great detail. The US magazine article was closely followed by other publications in the US, Canada, and Scotland detailing similar stories. These publications were not prevented from reporting the story as they were not under the jurisdiction of the Court of Appeal in England and Wales. The Court of Appeal held that the now widespread knowledge of the information that the injunction was restraining publication of, namely the identities of PJS, YMA, AB and CD and any identifying details of PJS’ liaisons with AB and CD, meant that PJS’ Article 8 right to a private and family life was unlikely to outweigh NGN’s right to free speech at a full trial of the issues.

PJS appealed to the Supreme Court for permission to overturn the Court of Appeal’s decision to lift the injunction (the injunction remained in place whilst the Supreme Court considered PJS’ appeal).

The Supreme Court unanimously decided to hear PJS’ appeal.

The Supreme Court’s Decision – invasion of privacy v breach of confidence

The Supreme Court disagreed with the Court of Appeal that online publication together with publication in the US, Canada, Scotland and online of PJS’ identity (amongst other details) meant that NGN’’s Article 10 rights now outweighed PJS and YMA’s rights under Article 8 to private and family life.

The Supreme Court found that the Court of Appeal had failed to distinguish between the tort of invasion of privacy and breach of confidence.

The Supreme Court explained that in breach of confidence claims it was appropriate to apply a quantitative test to see whether a claim for breach of confidence continued even though information was already in the public domain. Conversely, the Supreme Court explained that in a privacy claim the repetition of private information (despite previous disclosures) could constitute further breaches of an individual’s right to privacy. The Supreme Court appears to have accepted and taken notice of Desmond Browne QC’s submissions (Leading Counsel for PJS) that “you cannot wrap up fish and chips with internet publications” and that therefore there was still a purpose in maintaining the injunction.

The Supreme Court also found that the Court of Appeal had erred in finding that s.12 of the Human Rights Act 1998 enhances the weight in which the Article 10 rights play in the balancing exercise carried out between Article 8 and Article 10 rights in accordance with the European Convention of Human Rights 1998.

Additionally, THE Supreme Court held that the Court of Appeal had erred in their decision that any breach of PRS’ privacy rights could adequately be compensated by damages alone.

Comment

The PJS v NGN case is now due to go to a full trial. We will see if there are any further developments in the run up to this. It will also be interesting to see whether the Supreme Court’s decision results in an increase in the number of anonymised and “super” injunctions being applied for and granted.

Briffa advises on the tort of invasion of privacy as well as breach of confidence claims. Briffa also advises on all areas of intellectual property law.