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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> PJS v News Group Newspapers Ltd  EWCA Civ 100 (22 January 2016)
Cite as:  EWCA Civ 100
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ON APPEAL FROM
HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION
(Mr Justice Cranston)
London, WC2A 2LL
B e f o r e :
LADY JUSTICE KING
|- and -
NEWS GROUP NEWSPAPERS LIMITED
WordWave International Ltd
trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Gavin Millar QC & Mr Ben Silverstone (instructed by News Group Newspapers) represented the Respondents
Crown Copyright ©
LORD JUSTICE JACKSON:
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Present Proceedings,
Part 4. The Appeal to the Court of Appeal,
Part 5. The Law,
Part 6. Decision.
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section 'public authority' includes—
(a) a court or tribunal [...]"
(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;
(b) any relevant privacy code."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
4. The second background factor is that the Claimant and his partner have portrayed an image to the world of a committed relationship. That portrayal has taken a number of forms, Mr Tomlinson QC correctly points out there is always a dilemma for a public figure in that if they do not provide publicity they will be pursued the media [sic]. But undoubtedly the Claimant and his partner have on a number of occasions and in various ways portrayed an image of commitment. Moreover the Claimant has himself actively sought publicity.
5. The third background factor is that the Claimant and his partner have young children. They have featured in aspects of the publicity that the Claimant and his partner have attracted.
7. To my mind the Claimant does have a reasonable expectation that his sexual activities will remain private. However, it seems to me that the expectation of privacy is somewhat lower than might otherwise be the case because of the Claimant's own behaviour.
8. I am especially troubled by the Article 8 rights of the children. At some point, Mr Tomlinson QC suggested, the Claimant and his partner might choose to reveal to the children the nature of their sexual relations outside their marriage but it was up to them to choose the time and place. I can also well appreciate the point Mr Tomlinson QC has made about the difficulties these children not least because they are children of a well-known couple. But is a trite [sic] but important point that the Article 8 rights of the children cannot operate as a trump card.
9. In terms of the public interest Mr Millar QC put the case in my view too highly. He contended that there was a relevant public debate. Mr Millar QC suggested that somehow the story which the Sun wanted to run would contribute to that debate.
10. Discounting that aspect of Mr Millar QC's case it seems to me that he established that there is a public interest in publication in this case. The Claimant and his partner have portrayed an image of commitment. I accept all that Mr Tomlinson QC has said that that does not necessarily mean they do not engage in sexual relations with other people. Commitment may not entail monogamy. But it seems to me that having promoted that particular public image there is a public interest in correcting it when the claimant has engaged in the sort of casual sexual relationships as demonstrated in the evidence to which I referred."
"1. publication of the material contributed to a debate of general interest; and
2. publication of the material fell within the Respondent's freedom to criticise the Appellant on matters of public interest."
"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test..."
"11. The effect of this guidance is, therefore, that in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10. Those articles are now not merely of persuasive or parallel effect but, as Lord Woolf says, are the very content of the domestic tort that the English court has to enforce. Accordingly, in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If "no", that is the end of the case. If "yes", the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter enquiry is commonly referred to as the balancing exercise, and I will use that convenient expression."
(i) Contribution to a debate of general interest.
(ii) How well known is the person concerned and what is the subject of the report?
(iii) Prior conduct of the person concerned.
(iv) Method of obtaining the information and its veracity.
(v) Content, form and consequences of the publication.
(vi) Severity of the sanction imposed.
"... the only decisive question is whether a news report is capable of contributing to a debate of public interest, and not whether it achieves this objective in full."
"... articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person's private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest to society."
"... unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial."
"It is now clearly established that a balancing exercise between articles 8 and 10 of the European Convention on Human Rights ('the ECHR') conducted by a first instance judge is treated as analogous to the exercise of a discretion. Accordingly, an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach..."
LADY JUSTICE KING
Order: Appeal allowed