The Privacy Perspective

The case of PJS concerned an application for an interlocutory injunction. PJS was well known in the entertainment business and married to YMA, who was similarly well known. They had young children. In 2007 or 2008 PJS met AB and had occasional sexual encounters with them despite AB having a partner, CD. In December 2011 PJS had a three-way sexual encounter with AB and CD following which the sexual relationship with PJS and AB came to an end.

In early January 2016 AB and CD approached the editor of the Sun on Sunday, informing him of their encounter with PJS. The editor then contacted PJS notifying him of his intention to publish the story. PJS then brought proceedings for an interim injunction on the basis that publication would be a breach of confidence and an invasion of privacy.

AB then sought to get the story published in the United States, which was duly published on 6 April 2016. Other articles followed in Canada, a Scottish Newspaper and various websites. In England and Wales various newspapers started campaigns to flout the injunction. Despite the efforts of the appellant’s solicitors to prevent the story from spreading a significant body of internet material was generated.

Accordingly the Court of Appeal granted NGN’s appeal to set aside the interim injunction on 18 April 2016. The finding was quickly appealed to the Supreme Court.

The legal principles

The leading judgment, delivered by Lord Mance, highlighted four areas of the Court of Appeal’s reasoning which reflected errors of law:

1. Application of s.12 Human Rights Act 1998

The Court began by considering the competing Article 8 and 10 rights as well as the right to freedom of expression under s.12 of the Human Rights Act 1998 (“HRA”). In considering the Court of Appeal’s approach to the case the Court considered a clear error of law had been made in relation to the application of s.12.

The Court of Appeal considered that the direction to consider freedom of expression rights in s.12 enhanced the weight to be given to protecting freedom of expression.

Here the Court considered that, at an interim stage:

1. No article right had precedence over the other;
2. Where their values conflict an intense focus on the comparative importance of the rights being claimed in the case is required;
3. The justifications for interfering with or restricting each right must be balanced; and
4. The test of proportionality must be applied.

This balancing exercise was well-established by case law.

2. Limited public interest

The Court of Appeal had directed itself that the matters at issue were of “little public interest”. This was a misdirection. No matter the fame of the subject at issue there could be little if any public interest in the publication of their sexual encounters on the facts alone.

“any public interest in publishing such criticism must, in the absence of any other, legally recognised, public interest, be effectively disregarded in any balancing exercise and is incapable by itself of outweighing such article 8 privacy rights as the appellant enjoys.” (at p[24])

3. The difference between rights of confidence and intrusion

The Court also noted that a proper distinction should be made between rights of confidence and privacy. Privacy rights attract greater protection than confidentiality, though both may be engaged.

The starting point for the balancing test was that there was no public interest in the disclosure or publication of private sexual encounters even if they involve adultery or more than one person at the same time. Any such disclosure would constitute an invasion of privacy with any subsequent disclosure or publication constituting another invasion of privacy.

Notwithstanding the fact that the information at issue is already in the public domain or the fact they were repeated throughout the public Article 8 interference can still be made out. This was well supported by caselaw, in particular, the factually similar case of CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB). The injunction continued to serve a useful purpose. In this case, the Court of Appeal had given too much weight to the information already available on the internet.

Further, it had not given due weight to the qualitative difference of intrusiveness and distress comparative to confidentiality. Intrusion itself was a separate aspect of privacy which must be given credence. The lifting of the injunction would permit significant intrusion into the private and family lives of the claimant and their children and would likely cause further distress. Though the aspect of confidence in the material had been severely undermined by the publications on the internet, the intrusion that would occur if the injunction were lifted needed to be given appropriate weight.

The Court of Appeal, had failed to give the intrusion which would happen should the injunction be lifted appropriate consideration.

4. The effectiveness of damages as a remedy

In was found that the Court of Appeal had not given due consideration that, due to the nature of the claim being founded in privacy, damages would not be an adequate remedy in the event of infringements of rights caused by the discharge of the interim injunction.

Conclusion

Lord Mance thus concluded that the Claimant would be likely to establish that an injunction was merited at trial, intrusion would be “clear, serious and injurious.” The Appeal was allowed and the interim injunction should continue until trial of further order.

It should be noted that Lady Hale, in giving concurring judgment, highlighted that the privacy interests of the claimant’s children should be safeguarded separate from their parents. This consideration was weighty given the facts and the young age of the children.

Comment

The ratio of this case does much to reinforce caselaw regarding the impermissibility of the kiss and tell story. Without more a story cannot be seen to have legitimate public interest or even engage Article 10 rights. This includes kiss and tell stories which criticize conduct. This highlights the bar for responsible journalism when reporting martial and personal affairs. In any event, such stories are at the bottom end of the spectrum of importance when seeking to protect freedom of expression.

The disclosure of matters which are protected by injunction is not, in and of itself, fatal to the application for, or continuance of, an injunction. It is a factor which needs to be considered. The right to a private life extends to protection from intrusion into one’s private life as well as the confidentiality of one’s private matters. The further intrusion and harm which would be a consequence of lifting or failing to grant an injunction is a factor can be very weighty indeed.

The findings in the PJS case were highly fact-sensitive- it involved very well-known celebrity persons with young children and specific facts which merited the children’s protection. However, what must be acknowledged, in the words of Baroness Hale is the importance of children’s right to privacy and family life separate from their parents.