On 19 May 2016, the Supreme Court handed down its judgment in the well-reported case of PJS v News Group Newspapers Ltd.[1]  It was held, by a majority of 4-1, that the interim injunction restraining publication in England and Wales of the details of the appellant’s alleged extra-marital sexual relationship should remain in force until trial or further order.

Facts of the Case and Procedural History

PJS and his partner, YMA, are well-known individuals in the entertainment business who have two young children.  Between 2009 and 2011, PJS had occasional sexual encounters with AB.  AB had a partner, CD, and on 15 December 2011 PJS asked AB if CD was “up for a three-way” to which AB replied that CD was.[2]

After this particular sexual encounter took place, the relationship between PJS and AB came to an end, and in January 2016 AB and CD approached the editor of the Sun on Sunday and disclosed intimate details about their earlier sexual relations with PJS.  The editor notified PJS of his intention to publish the story, and so PJS commenced proceedings and applied for an interim injunction to restrain the proposed publication.[3]

At first instance, on 15 January 2016 Cranston J refused an interim injunction.  On 22 January 2016, however, the Court of Appeal allowed an appeal and restrained publication of the relevant names and details.[4]

In the following 11 weeks, AB took steps to get the story published overseas in the USA.  On 6 April 2016 an American magazine published the full story, but PJS’s solicitors were able to restrict publication to hard copy editions only and attempted to restrict online publication to a US audience.  Similar articles followed in Scotland and Canada.[5]  Despite steps taken by PJS’s solicitors to remove the story from the internet, this proved to be practically impossible: despite their best endeavours, the court concluded that there remains a “significant body of internet material identifying those involved by name”.[6]

On 12 April 2016, News Group Newspapers (“NGN”) applied to the Court of Appeal to set aside the injunction on the basis that, as the protected information was now in the public domain, the injunction served no useful purpose and/or interfered unjustly with NGN’s Article 10 rights.  The application was granted on 18 April 2016, but the injunction remained in force pending PJS’s appeal to the Supreme Court.[7]

Supreme Court Judgment

Lord Mance, delivering the leading judgment, identified four headings under which to analyse the Court of Appeal’s judgment on 18 April 2016.[8]  The remainder of this article will follow Lord Mance’s structure.

  1. s12(3) Human Rights Act 1998 (“HRA”)

“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”

The Court of Appeal, when coming to its decision in April 2016, directed itself that this subsection of s12 HRA “enhances the weight which article 10 rights carry in the balancing exercise”.[9]  As deciding whether to allow an interlocutory injunction is a matter for the court’s discretion, this type of decision is usually unlikely to attract appellate attention.  However it was held that, in this case, the Court of Appeal’s analysis was so contrary to previous authority at the highest level that the Supreme Court’s intervention was necessary.[10]

The correct analysis is that s12(3) HRA simply requires the court to be satisfied that the applicant for the injunction would be likely to “win” at trial.  This requirement does not alter the tests and principles to be applied when deciding, at trial, whether a permanent injunction should be granted:

  • neither article has precedence over the other;
  • where articles 8 and 10 conflict the focus should be on the comparative importance of the rights being claimed in that individual case;
  • the court should consider the justifications for interfering with or restricting the rights conferred by each article; and
  • the proportionality test must be applied.[11]

This error in law was held to be, by itself, a sufficient basis upon which to justify the Supreme Court’s intervention.[12]

  1. The reference to a “limited public interest”

The Court of Appeal also erred in its analysis of the public interest (or lack thereof) which would be served by allowing publication.  The Court of Appeal stated at paras 12, 30 and 47 of its judgment that there was a “limited public interest” in the proposed story, and this was taken into account by the court when it performed the required balancing exercise.  This position was adopted by the Court of Appeal because its previous jurisprudence rightly suggests that the conduct in question does not have to be illegal for it to be criticised by the press.[13]

However, it was held that “criticism of supposed infidelity cannot be the guise under which the media can disclose kiss and tell stories of no public interest in a legal sense”.[14]  Lord Mance expressed scepticism about the extent to which reporting sexual encounters can properly be said to fall within the ambit of Article 10 in any event, before concluding that:

 “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.”[15]

 

  1. The distinction between rights of confidence and privacy rights

It is suggested that, in the context of this case, the most significant distinction between rights of confidence and rights of privacy lay in the approach taken by the court when assessing the significance of information already in the public domain.

Referencing the infamous Spycatcher case,[16] Lord Mance emphasised that when determining whether a claim for misuse of private information will survive when information is in the public domain, a quantitative test should be applied: how widely known are the relevant facts?[17]  Such a test is “potentially decisive in the context of an application based on confidentiality”.[18]

However, applying such an approach to claims which involve privacy “overlooks the invasiveness and distress involved, even in repetition of private material.”[19]  The key question is whether an injunction would serve a useful purpose, not whether information is readily accessible,[20] and this is not properly served in privacy cases by undertaking a purely quantitative assessment.

It follows that (as well as considering quantity) the court should make a qualitative assessment of the material that (a) has already been published; and (b) the applicant is seeking to restrain, and should take this assessment into account when deciding the ultimate issue:

“the question whether material has, or is about to, become available to the public should be considered with reference to, inter alia, the medium and form in relation to which the injunctive relief is sought.”[21]

Lord Mance therefore criticised the Court of Appeal for “[focusing] 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”.[22]  It was suggested that the inevitable media storm which would follow a discharge of this particular injunction would cause a significant amount of distress not only to PJS but to his children.[23]   For these reasons, it was held that the Court of Appeal erred in law in failing to undertake a combined quantitative/qualitative assessment.

  1. Whether a cross-undertaking in damages would be an effective remedy

After concluding that there was no overriding urgency to publishing the story,[24] the Supreme Court unsurprisingly held that it would be highly unlikely for damages to be considered an adequate remedy at trial in the context of this case, owing to the nature of the material sought to be published, the high-profile identity of PJS, and PJS’s financial status.[25]

Conclusion

Other than providing clarification as to the effect of s12(3) HRA, the most interesting part of this judgment arises under heading 3 where Lord Mance considered the difference between rights arising through confidence and privacy respectively.  The need, in privacy cases where a substantial amount of material has already been published, to consider both qualitatively and quantitatively such material (and the effect of an injunction in the terms sought) appears to be the most significant element of this judgment, from a theoretical perspective at least.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

[1] [2016] UKSC 26

[2] [4]

[3] [5]

[4] [6]

[5] [7]

[6] [9]

[7] [10]

[8] See [2016] EWCA Civ 393 for the full text judgment (subject to some redaction).  A summary is set out at paras 17 and 18 of the Supreme Court judgment.

[9] [2016] EWCA Civ 393 at para [40]

[10] [20]

[11] Ibid

[12] [20]

[13] [21]

[14] [22]

[15] [24]

[16] Sunday Times v UK (No. 2) (“Spycatcher No 2”) (1991) 14 EHRR 229

[17] [25]

[18] [25]

[19] [26]

[20] [26]

[21] [34]

[22] [35]

[23] [35]

[24] [40]

[25] [43]