The Supreme Court continued, until trial, an interim injunction stopping the Sun on Sunday from identifying PJS, an entertainer, and publishing details of sexual encounters he had had with another couple. The story had already appeared abroad and online, but the majority held that unrestricted newspaper coverage in England and Wales would be a further and more intrusive invasion of the privacy of PJS, his partner and their young children, and that no legally recognised public interest had yet been shown. Lord Toulson dissented and would have left the injunction discharged.
A newspaper proposed to publish an account of PJS’s private sexual life. PJS sought an injunction on grounds of privacy and confidentiality.
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The application concerned whether publication should be restrained pending a trial.
The courts below
On 15 January 2016 Cranston J refused the injunction. He accepted that PJS reasonably expected his sexual activities to remain private, and he was especially troubled by the children’s interests, though he did not treat them as decisive. He thought there was a public interest in correcting an image of commitment by disclosing casual encounters, while noting that commitment may not entail monogamy. He applied a higher threshold than the ordinary test for interim injunctions.
On 22 January 2016 the Court of Appeal granted the injunction. It held that the judge had not explained how the children’s rights were taken into account, and that there was no false image to correct: the image presented was of commitment, not monogamy. A story which merely satisfies curiosity about a well-known person’s private life does not serve a legally recognised public interest. PJS was likely to establish at trial that publication should not be allowed.
After the injunction was granted, material identifying those concerned appeared outside England and Wales and on the internet. The newspaper relied on its availability when it applied to discharge the order.
On 18 April 2016 the Court of Appeal discharged the injunction. Jackson LJ, with whom King and Simon LJJ agreed, distinguished confidentiality, which generally fails once secrecy is lost, from privacy, which can survive wider knowledge. He still thought publication would probably breach the right to respect for private life, but not that a permanent injunction was likely. Much of the harm had already occurred; newspaper publication would increase an existing intrusion rather than reveal a secret; and the court should not ban discussion of what had become common knowledge. The children mattered, but they were not a trump card, and they would eventually learn of the events anyway.
The test the Supreme Court applied
The case was governed by the Human Rights Act 1998. Article 8 protects private and family life. Article 10 protects freedom of expression. Section 12 requires the court, before restraining publication pending trial, to be satisfied that the applicant is likely to establish that publication should not be allowed. It must also have particular regard to freedom of expression and, for journalistic material, to how far the material has or is about to become available to the public, whether publication is in the public interest, and any relevant privacy code.
Every member of the Supreme Court held that the Court of Appeal had erred in law by saying that section 12 enhances the weight of article 10 when it is balanced against article 8. Neither right has preference. The court must compare their importance on the particular facts, examine the justification for interfering with each, and apply proportionality. That error required the Supreme Court to decide the application itself.
Why the majority restored the injunction
Lord Mance, with whom Lord Neuberger, Lady Hale and Lord Reed agreed, held that there was, on the evidence then available, no public interest in the legal sense in publishing the story. The press may criticise people in the public eye even if their conduct is lawful, but criticism cannot be a pretext for disclosing sexual history which serves no legally recognised public interest. Curiosity, newspaper sales, and the fact that PJS and YMA were otherwise well known were not enough. European authority distinguishes reporting capable of contributing to public debate from allegations about private life intended to titillate. The majority accepted that article 10 was engaged, but placed this expression at the bottom of the scale. It could not by itself outweigh article 8. The newspaper could still try at trial to prove a genuine public interest.
The majority also held that loss of secrecy does not end a privacy claim. Confidentiality is concerned with keeping information secret. Misuse of private information is also concerned with intrusion. Repeating intimate facts, especially in another medium, can be a further wrong. Earlier cases, including CTB, were approved: an injunction may still be useful after names have circulated online, because national-newspaper coverage is likely to be more intrusive than material which a reader must look up abroad or on the internet. Each exposure can cause fresh distress.
The Court assessed what newspaper coverage would add to the exposure that had already occurred online. Availability in one medium did not make the impact of mass publication in another inevitable.
Damages were not treated as an adequate substitute. PJS’s real concern was the invasion itself, which a later award cannot undo in the way a finding that an allegation was false may answer a defamation. Whether exemplary damages or an account of profits can be awarded for misuse of private information was left open, and did not decide the injunction.
The children
Lady Hale said that the children’s interests could not be dismissed by calling them something other than a trump card. They have their own privacy interests and a right to respect for family life with their parents. The newspaper’s IPSO Editors’ Code, to which section 12 required particular regard, says that editors must demonstrate an exceptional public interest to override the normally paramount interests of children under 16.
There was not yet evidence of the likely harm in the short, medium and longer term, or of whether the children could be protected. Those questions belonged at trial. Learning from their parents, in an age-appropriate way, was different from the publicity likely to follow discharge of the injunction. Some paragraphs about the children’s particular circumstances were redacted so that the family would not be identified. Unlike a case in which there was a strong legal public interest in naming a parent and expert evidence about the child, there was here no such public interest and no such evidence.
The dissent
Lord Toulson agreed that the section 12 misdirection required the Supreme Court to decide the matter, but he would not have restored the injunction. A likely breach of article 8 was not enough: PJS had to be likely to obtain a final injunction. In his view the story was so widely available, through websites, social media, a Scottish newspaper and other sources, that remaining secrecy was illusory. Section 12 required the court to look at availability from every source, and the medium should not make a significant difference. He distinguished repeated publication of intimate photographs, where each viewing is a fresh intrusion, from publication of facts already widely known. He did not underestimate the unpleasantness of a lurid report, but doubted it would be more enduring than publicity which would continue anyway. The young children could be shielded for a time, and would eventually learn of the events. Inadequacy of damages was not a reason to grant an otherwise inappropriate injunction, and a trial would not be pointless. He would have dismissed the appeal.
Verdict: Permission to appeal was unanimous. By four votes to one, the Court allowed PJS’s appeal and continued the interim injunction until trial or further order. It made no final ruling on publication or damages.
