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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

@MinistryofLing

The existence of the press is both a form of freedom of expression and a contribution to preventing tyranny. Yet, because the press itself is a power block, it too needs checks on it—checks provided both by the freedom of the press itself in the form of other newspapers and media, and by the law.

Joint Committee on Privacy and Injunctions, Privacy and Injunctions, 2012

Injunctions are an incredibly common remedy, dealing with issues from boundary disputes to anti-social behaviour. In recent years, however, the power has come under more scrutiny where injunctions are used to prevent details of the private lives of public figures being reported. Famously, in 2011 a media storm was created around the super-injunction which Ryan Giggs had used to protect details of his extra-marital affair being published: despite the legal protection in place, his name was widely reported across social media and even announced in parliament under the protection of parliamentary privilege. This incident, and several others (including those involving popular figures such as Andrew Marr and Jeremy Clarkson), led to the formation of the Joint Committee On Privacy and Injunctions, which reported in 2012.

Five years later and these issues have again come to prominence with the controversial case of PJS v News Group Newspapers Ltd. In May, the Supreme Court handed down its much awaited judgment, in which they determined that the injunction preventing the name of the celebrity generating such headlines as ‘Gag celeb splashed in paddling pool full of olive oil and it wasn’t extra virgin’ should remain in place until full trial, much to the ire of many within the print media.

As a result, many have raised the question: in the modern world, are such injunctions simply obsolete?

A Threesome and an Injunction

All injunctions are equitable remedies granted at the discretion of the court. They are often applied for on an interim basis ahead of full trial in order to deal with an urgent risk of harm. The basis of granting an interim prohibitory injunction lies in applying American Cyanamid v Ethicon [1975] 2 WLR 316, namely asking:

• whether there is a serious question to be tried;
• whether damages would be an adequate remedy;
• where the balance of convenience lies; and
• whether there are any other special factors.

As summarised in the PJS judgment, the facts which led to the injunction are as follows: PJS is married to YMA, with whom they have two children. Around 9 years ago, PJS met AB with whom they began to have ‘occasional sexual encounters’. In December 2011, PJS asked AB whether their partner, CD, would be interested in engaging in a threesome, to which AB replied that CD was. After this occurred, the sexual relationship between PJS and AB ended.

In January of this year, AB and CD approached The Sun newspaper with the details of this relationship. When the newspaper’s editor, following protocol, informed PJS that the story would be published, PJS applied for an injunction to prevent publication on the basis that this would breach confidence and invade privacy (for which damages are therefore not an adequate remedy). Following an initial rejection on the grounds that there was public interest in the story, the injunction was granted by the Court of Appeal on the grounds that, on the contrary, they felt it was likely that PJS would succeed in preventing publication at trial.

Despite this, the story was published in the United States in April, though this was ‘geo-blocked’ to restrict the information to the USA. Further articles followed in Canada and even Scotland, with the details appearing on several websites and on social media.

The widespread knowledge of the injunction itself was much criticised in traditional British press, who were unhappy that they were unable to publish details which are freely available online. It was no surprise that the decision to implement the injunction was then appealed by News Group Newspapers (NGN), parent company of The Sun.

NGN’s Appeal

As with so many cases involving attempts to prevent the salacious details of a celebrity’s life from being discovered, the key legal issue in resolving whether the story should remain private lay in the balancing PJS’ right to a private and family life under article 8 of the European Convention of Human Rights (ECHR) with the freedom of expression held by those who wish to publicise the story. Important also was section 12 of the Human Rights Act 1998, which states at section 12(4) that:

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -

1. the extent to which -
2. the material has, or is about to, become available to the public; or
3. it is, or would be, in the public interest for the material to be published;
4. any relevant privacy code.

This demonstrates parliament’s intention that freedom of expression should be given particular consideration though (confusingly) no actual extra weight when considering proportionality.

In April, an application by News Group Newspapers to lift the injunction was successful in the Court of Appeal. The argument was essentially two-fold:

1. there is public interest in revealing the details of the story, which outweighs the right of PJS to a private life, and
2. the need for privacy has been undermined in any case by the extent to which the information is freely available.

Although the court accepted that questions of privacy still arise once the information is in the public domain and that the intrusion created by releasing the injunction would be ‘an increase of what they are suffering already’, it was felt that PJS was not likely to obtain a permanent injunction at trial, so the interim injunction should be lifted. The reasons given in support of this included that:

• confidentiality had been lost as the information was so widely known;
• the harm that the injunction was intended to prevent had already occurred; and,
• the court should not make orders which are ineffective.

However, PJS swiftly appealed this to the Supreme Court before the press could take advantage of the lifting of the injunction. Unfortunately for those media outlets, the majority judgments disagreed with the conclusions of the Court of Appeal and found in favour of maintaining the injunction until full trial.

Was there any public interest?

Both Lord Mance and Lord Neuberger found that the Court of Appeal erred in law firstly in finding that section 12 enhanced the weight placed on article 10 rights and secondly in concluding that there was even ‘limited public interest’ in the story. Lord Mance noted that ‘criticism of supposed infidelity cannot be a guise under which the media can disclose kiss and tell stories of no public interest in the legal sense’.

This echoes what was emphasised in Mosley v United Kingdom, where there is a clear difference between those ‘tawdry allegations’ of which there is interest, and those facts which contribute to “interest” in the legal sense: namely, ‘to a debate of general public interest in a democratic society’. The court also referred to European cases such as Axel Springer AG v Germany, which emphasises at para 91 the principle that whilst there will be public interest in the private lives of some public figures – such as politicians - this will not be the case where the information has ‘the sole aim of satisfying the curiosity of a particular readership’.

On this point, the court is surely correct. Kiss and tell stories only appear to go beyond pub talk when what is revealed is a contradiction between the public and private face. However, unlike perhaps an extra-marital affair, there appears no obvious reason why having an adventurous sex life is mutually exclusive with a happy family life and relationship. To suggest otherwise would seem to take an unreasonably narrow view of what form a normal and happy relationship may come in.

The Additional Harm Principle

The key issue is therefore whether the injunction should be left in place given the widespread availability of the information in the first place. Unlike actions concerning confidentiality, the issue with actions relating to privacy is not simply whether the information is available in the public domain – i.e the fact that the information is no longer a secret – but the harm publication, and re-publication, can cause.

For example, an embarrassing photo of a person which is published in a local newspaper has lost its nature of confidentiality, but it is clear to see that greater harm would be created were that photo to be put on all billboards lining motorways or the front page of a national newspaper. 

As characterised by Lord Mance, publication in hardcopy newspapers (and their associated websites) would create a ‘media storm’ which would ‘add greatly and on a potentially enduring basis to the intrusiveness and distress felt by the appellant, his partner and, by way of increased media attention now and/or in the future, their children’. As Lord Neuberger outlines in his judgment, a lifting of the injunction is likely to mean that people searching for PJS quite innocently would be pointed towards the story.

Further, the very fact that newspapers such as NGN were still attempting to challenge an injunction can demonstrate that further harm was in fact still possible. As highlighted in CTB v News Group Newspapers (and referred to in Lord Mance’s judgment) at para 29:

… coverage has not yet reached saturation point. Had it done so, the story would no longer retain any interest. This factor tends, therefore, to confirm my impression that the court's attempts to protect the Claimant and his family have not yet become wholly futile

It is therefore the fact that the additional publication in national newspapers would cause additional harm that justifies the injunction staying in place, and not the fact that the information is available on the internet for those who look for it.

The Power of Newspapers

The view of the majority judgment rests on the idea, as outlined by Lord Neuberger, that ‘a story in a newspaper has greater influence, credibility and reach, as well greater potential for intrusion, than the same story on the internet’.

There may be many who disagree with this view, and who could well point to the fact that readership of newspapers continues to decline, with former household names such as the Independent ceasing to produce a print edition altogether this year.

However, this fails to account for two key points. First, the fact that newspapers are still key institutions both in distribution of news even in the online arena. According to ABC Online figures, the Daily Mail nets over 13 million unique online browsers on average each day, the Guardian has over 8 million, the Telegraph over 4 million and the Sun over 2 million. This is not an insignificant proportion of the population. It is also still seen as significant when newspapers announce their alignment in key political debates such as which side of the EU referendum they endorse, and even other independent news sources such as the Huffington Post, run articles specifically on what the newspapers are reporting.  

Second, although those who purchase newspapers are in decline, it is difficult not to be exposed to their messages whilst they remain on sale. If the story were to be permitted to be printed, the headline alone would be visible by anyone who could read when walking into (or just past) a newsagent, supermarket or petrol station. Unlike online sources over which consumers are able to exercise a degree of choice as to exposure, it is not possible to avoid the messages from newspapers without, to a large degree, becoming a hermit. This is in fact why – contrary to any later protests about the judgment – Lord Neuberger notes that NGN did not in fact argue that the law itself was wrong or outdated.

Third, online journalism is more immediate and superficial, whilst print journalism often commits more significant resources to researching stories and as such, their assessment is more likely to be authoritative?

Conclusion

In his dissenting judgment, Lord Toulson argued: ‘I do not see that it should make a significant difference whether the medium of the intended publication is the internet, print journalism or broadcast journalism. The world of public information is interactive and indivisible’. Given the growing dominance of online sources such as Twitter, it is easy to see that this this may become true over time, though as much of the case law in this area has been established since the advent of Twitter, this may be longer than we suspect. For now the inherent power of newspapers lies in their physical visibility in the places of our everyday life.

The mistake in analysing this case would be to conflate the loss of confidence with the maximum amount of harm to privacy being caused such that an injunction is pointless. As noted by the court, despite the fact that 25% of the public know who PJS is, the injunction can still therefore play a role in protecting this information from the remaining 75%.  

Fundamentally, this was a case regarding a newspaper’s desire to share the details of the sex life of a celebrity in order to make money. As noted back in 2012 by the Joint Committee on Privacy and Injunctions, freedom of the press is not identical to the freedom of speech, and that, sometimes, ‘while purporting to defend freedom of expression, the press (or other media) might really be promoting its own commercial freedom’. This certainly seems to have occurred in this case.

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Tagged: Human Rights, Media, Privacy Law

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