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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> PJS v News Group Newspapers Ltd [2016] EWCA Civ 393 (18 April 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/393.html Cite as: [2016] EWCA Civ 393 |
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ON APPEAL FROM
THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION
MR JUSTICE CRANSTON
HQ16X00160
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE SIMON
____________________
PJS |
Appellant |
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- and - |
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News Group Newspapers Ltd |
Respondent |
____________________
Carter-Ruck Solicitors) for the Appellant
Mr Gavin Millar QC and Mr Ben Silverstone (instructed by Simons Muirhead & Burton Solicitors) for the Respondent
Hearing dates: Friday 15th April 2016
____________________
Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction | Paragraphs 2 to 5 |
Part 2. The facts | Paragraphs 6 to 10 |
Part 3. The present proceedings | Paragraphs 11 to 19 |
Part 4. The application to set aside the injunction | Paragraphs 20 to 27 |
Part 5. Analysis | Paragraphs 28 to 48 |
Part 6. Conclusion | Paragraphs 49 to 53 |
Part 1. Introduction
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
…
(3) 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.
(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 –
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;"
Part 2. The facts
Part 3. The present proceedings
"Human inquisitiveness is such that thousands more people have probably searched for this story (which is far quicker to locate, one might add, than anything rumoured to be in the Leveson Report) than would have paid to read it in the Sun on Sunday."
"A FIFTH of people on the streets of England 'already know' the name of celebrity love cheat who gagged the Press from revealing his identity, Mail Online survey reveals
- Married celebrity with young children had a threesome with another couple
- Court imposed an injunction banning anyone in England from naming him
- But his identity has been widely revealed elsewhere and is available online
- Mail Online survey found that 20 percent of the public already claim to know who he is while others said they know how to find out".
Part 5. Analysis
"Actions for breach of confidence and actions for misuse of private information rest on different legal foundations. As Lord Nicholls said, they protect different interests: secret or confidential information on the one hand and privacy on the other. The focus of the actions therefore is also different. In Campbell at para 51, Lord Hoffmann described the 'shift in the centre of gravity' when the action for breach of confidence was used as a remedy for the unjustified publication of personal information. In those circumstances, he said, the focus was not on the duty of good faith applicable to confidential personal information and trade secrets alike, but the protection of human autonomy and dignity - the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people."
"Nevertheless, a point may be reached where the information sought to be restricted, by order of the Court is so widely and generally accessible 'in the public domain' that such an injunction would make no practical difference."
i) Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost.
ii) Much of the harm which the injunction was intended to prevent has already occurred. The relatives, friends and business contacts of PJS and YMA all know perfectly well what it is alleged that PJS has been doing. The 'wall-to-wall excoriation' which the claimant fears (CTB at [24]) has been taking place for the last two weeks in the English press. There have been numerous headlines such as "celebrity love cheat" and "Gag celeb couple alleged to have had a threesome". Many readers know to whom that refers.
iii) The material which NGN wishes to publish is still private, in the sense that it concerns intimate sexual matters. I reject Mr Millar's submission that PJS's article 8 rights are no longer engaged at all. First, there are still many people, like Mr Browne's hypothetical purchaser of the Financial Times, who do not know about PJS's sex life. Secondly, NGN's planned publication in England will be a further unwelcome intrusion into the private lives of PJS and his family. On the other hand, it will not be a shock revelation, as publication in January would have been. The intrusion into the private lives of PJS and his family will be an increase of what they are suffering already.
iv) If the interim injunction stands, newspaper articles will continue to appear re-cycling the contents of the redacted judgment and calling upon PJS to identify himself. Websites discussing the story will continue to pop up. As one is taken down, another will appear. This process will continue up to the trial date.
v) As stated in paragraph 59 of the previous redacted judgment (paragraph 61 of the full judgment), NGN is entitled to publish articles criticising people in the public eye. Therefore it has an article 10 right to publish an account of PJS's conduct. That article 10 right has to be balanced against PJS's article 8 right for his sexual liaisons to remain a private matter. The need to balance article 8 rights against article 10 rights means that there is a limit to how far the courts can protect individuals against the consequences of their own actions.
vi) As a result of recent events, the weight attaching to the claimant's article 8 right to privacy has reduced. It cannot now be said that when the day of trial comes, PJS's article 8 right is
likely to prevail over NGN's article 10 right to freedom of expression, such as to warrant the imposition of a permanent injunction.
vii) Finally, the court should not make orders which are ineffective. It is in my view inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge. This must be relevant to the exercise of the court's discretion. Injunctions are a discretionary remedy.
Part 6. Conclusion
Lady Justice King:
Lord Justice Simon:
-ENDS-