image: freeimages.com/Brano Hudak
On 19th May 2016 the Supreme Court handed down its judgement on the case of PJS v News Group Newspapers; the so-called “Celebrity Threesome injunction” case. A brief summary of the progression of the case is set out below.
- PJS a well known individual in the entertainment industry engaged in extra-marital sex with AB and his partner CD
- In January 2016 AB and CD approached the Sun on Sunday with the story
- Upon notification of the impending publication of the story, PJS sought to obtain an injunction to stop the publication of the story.
- AB took steps to get the story published outside UK
- The Court of Appeal granted the injunction, in spite of wide-spread publication of the story outside of the UK
In January 2016 Newsgroup Newspapers (NGN) applied to the Court of Appeal to have the injunction lifted on the grounds that the “protected information was now in the public domain” and that as the injunction therefore served no useful purpose there had been an unjustified interference with NGN’s Freedom of Expression under Article 10 of the ECHR. While media outlets outside of the UK were free to publish the story in full (as injunctions are not enforceable outside of the jurisdiction) ,Newspapers within England and Wales were still prohibited from publishing the story.
In its judgement, the Court of Appeal refused to uphold the injunction on the following grounds:
- As knowledge of the matters in question was widespread, any confidentiality regarding them had probably been lost
- Any harm that the injunction had sought to prevent had already occurred
- If the injunction was upheld, newspaper articles would continue to appear calling on PJS to identify himself
- That there was a public interest in correcting the image of PJS by disclosing that he engaged in the sort of casual sexual relationships demonstrated by the evidence rather than than maintaining a committed relationship.
- That while there was a need to balance NGN’s right to freedom of expression under Article 10 ECHR against PJS’s right to respect for private and family life under Article 8 ECHR, there was a limit to how far the courts could protect an individual (PJS) against the consequences of his own actions. Additionally Jackson LJ argued that s.12 of the Human Rights Act (Freedom of Expression) enhanced the weight that should be given to Article 10 in the balancing process.
- That the court should not make an order which would be ineffective. As injunctions are discretionary remedies governed by a set of principles (known as Equitable Maxims) the court should not grant an injunction where it will act in vain.
- Finally that the PJS’s Children’s right to privacy under Article 8 should not be treated as a “Trump Card” against the freedom of expression. Whether or not, the injunction was upheld, it was inevitable that the children would learn about the matter in question.
Accordingly, the matter was appealed to the Supreme Court by PJS.
The Supreme Court argued that the Court of Appeal was misdirected in its decision to discharge the injunction. While it accepted that there was a need to balance to Article 8 and Article 10 of the ECHR, it did not accept the argument that the Human Rights Act gave greater weight to the Freedom of Expression and took the view that each right has equal potential force in principle and that the balance between them is determined on the facts of the case (as was stated by in re S (A Child)  ). Furthermore, the Supreme Court felt that the Court of Appeal had overlooked the intrusive and distressing effect of coverage on PJS and his family if the injunction was to be lifted. Finally, in stark contrast to to the Court of Appeal, the Supreme Court found that there was no public interest in any legal sense in the story. On these grounds, the Supreme Court chose to uphold the injunction.
The Supreme Court’s Judgement in the case of PJS is significant. For many people, the granting of an injunction where information is already known to the general public and where little can be done to stop publication outside of the jurisdiction or on the Internet demonstrates a failure by the judiciary to adapt to change or even adhere to the maxims of equity.Moreover, the court’s decision to maintain the injunction will only serve to perpetuate press coverage of the story and exacerbate any harm to PJS and his family then would have been the case if the injunction had been lifted at an earlier stage.
Despite this, I do not accept the argument submitted by NGN that the injunction should be lifted in the interests of justice. While both The Times and The Sun have cried outrage at the injunction and called “on their loyal readers to help end the farce that means [they] can’t tell… the full story of the celebrity father’s threesome… by writing to their MP’s to bring an end to this injustice”, it’s ludicrous to consider the inability of the press to publish a story arising out of a breach of confidence and an invasion of privacy as such. Lest we forget, the level of privacy enjoyed by the “soi-disant” watchmen that own or make up the higher echelons of the British press. While undoubtedly, the right to privacy isn’t always sacrosanct (particularly where there is a public interest in the disclosure of information), a “tawdry story” regarding the extra-marital affairs of an entertainer cannot and should not be allowed to lower the threshold in the public interest test adopted by the courts. Any breaches of the right to privacy in the name of freedom of expression should be measured, respectful of the interests of third parties and legitimately in the public interest.