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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> PJS v News Group Newspapers Ltd (Rev 1) [2016] UKSC 26 (19 May 2016) URL: http://www.bailii.org/uk/cases/UKSC/2016/26.html Cite as: [2016] HRLR 13, [2016] UKSC 26, [2016] 1 AC 1081, [2016] AC 1081, [2016] FSR 33, [2016] 2 WLR 1253, [2016] WLR(D) 272, [2016] EMLR 21, [2016] 2 FLR 251, [2016] Fam Law 963, [2016] 4 All ER 554 |
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[2016] UKSC 26
On appeal from: [2016] EWCA Civ 393
JUDGMENT
PJS
(Appellant)
v
News
Group
Newspapers
Ltd
(Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
19 May 2016
Heard on 21 April 2016
Appellant Desmond Browne QC David Sherborne Adam Speker Lorna Skinner (Instructed by Carter-Ruck) |
|
Respondent Gavin Millar QC Ben Silverstone (Instructed by Simons Muirhead & Burton Solicitors) |
LORD MANCE: (with whom Lord Neuberger, Lady Hale and Lord Reed agree)
Introduction
1.
The interim injunction the subject of this application has attracted
much attention. Whatever the decision of the Supreme Court, it will probably
give rise to further, entirely legitimate, debate on the value
of such
injunctions in the internet age. But the majority of this Court has concluded
that, in the light of legal principles that were effectively uncontroversial and
for reasons more particularly summarised in paras 44 to 45 below, the
application for permission to appeal should be granted and the interim
injunction continued until trial or further order. The ground on which the
Court acts is to preserve the privacy interests of the appellant, his partner
and their young children in England and Wales, pending a trial. Without the
injunction, there will be further unrestricted and extensive coverage in hard
copy as well as other media in England and Wales, and the purpose of any trial
will be largely undermined. On the basis of the case law, the fact that there
has been significant internet and social media coverage (and limited hard copy
publication outside the jurisdiction) which already invades the privacy of the appellant
and his family is not decisive.
News
Group
Newspapers
Ltd’s (“NGN’s”) purpose
in applying to set aside the interim injunction is to add extensively and in a
qualitatively different medium to such invasions, without, on present evidence,
having any arguably legitimate basis for this and at the risk only of having to
pay damages after a trial.
3.
The Court is well aware of the lesson which King Canute gave his
courtiers. Unlike Canute, the courts can take steps to enforce its injunction
pending trial. As to the Mail Online’s portrayal of the law as an ass, if that
is the price of applying the law, it is one which must be paid. Nor is the law
one-sided; on setting aside John Wilkes’ outlawry for publishing The North
Briton, Lord Mansfield said that the law must be applied even if the
heavens fell: R v
Wilkes (1768) 4 Burr 2527, 98 ER 327 (347). It is
unlikely that the heavens will fall at our decision. It will simply give the appellant,
his partner and their young children a measure of temporary protection against further
and repeated invasions of privacy pending a full trial which will not have been
rendered substantially irrelevant by disclosure of relatively ancient sexual history.
The facts
4.
We can for the most part take the facts from Jackson LJ’s judgment in
the Court of Appeal. PJS,
the claimant (now the appellant) is in the
entertainment business and is married to YMA, a well-known individual in the
same business. They have young children. In 2007 or 2008, the claimant met AB
and, starting in 2009, they had occasional sexual encounters. AB had a partner,
CD. By text message on 15 December 2011, the claimant asked if CD was “up for a
three-way”, to which AB replied that CD was. The three then had a three-way
sexual encounter, after which the sexual relationship between
PJS
and AB came
to an end, though they remained friends for some time.
5.
By or in early January 2016, AB and CD approached the editor of the Sun
on Sunday, and told him about their earlier sexual encounters with PJS.
The
editor notified
PJS
that he proposed to publish the story.
PJS’s
case is that publication
would breach confidence and invade privacy. He brought the present proceedings
accordingly, and applied for an interim injunction to restrain the proposed
publication.
6.
Cranston J refused an interim injunction on 15 January, but the Court of
Appeal (Jackson and King LJJ) on 22 January 2016 allowed an appeal and
restrained publication of the relevant names and of details of their
relationship: [2016] EWCA Civ 100. The Court provided the parties with its full
judgment, but published only a redacted version
omitting the names and details.
7.
The injunction was effective for eleven weeks, but AB took steps to get
the story published in the United States. In consequence a magazine there published
an account of PJS’s
sexual activities on 6 April 2016, naming those involved. But,
as a result of representations by the appellant’s solicitors, it restricted
publication to hardcopy editions only, and “geo-blocked” online publication so
as to restrict this to the United States. The evidence is that, apart from the
one further state publication, the story was not taken up in America. Some
other similar articles followed in Canada and in a Scottish
newspaper.
But,
whatever the source, details started to appear on numerous websites, one of
which contained equivalent detail to that which had appeared in the American
magazine, as well as in social media hashtags.
8.
Various
English and Welsh
newspapers
have in these circumstances published
vigorous
complaints about their own inability to publish material which was
available on the internet. The Times on 8 April 2016 reported that the
injunction was being “flouted on social media” after the “well-known” man was
named in the US and that the Society of Editors had condemned such injunctions
as “bringing the whole system into disrepute”. The Sun on 10 April 2016 called “on
our loyal readers to help end the farce that means we can’t tell you the full
story of the celebrity father’s threesome” by writing to their MPs “to get them
to
voice
the public outcry in parliament and bring an end to this injustice”.
It set out a suggested form of letter. It appears that an MP was by 11 April
2016 proposing to name the appellant in Parliament, something that intervention
by the Speaker may have prevented. The Mail Online on 14 April 2016 reported
that it had held a survey which “found that 20 percent of the public already
know who he is while others said they know how to find out”. The online tool
Google Trends shows a massive increase in the number of internet searches
relating to the appellant and YMA by their true names.
10. On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction granted on 22 January 2016, on the grounds that the protected information was now in the public domain, and that the injunction therefore served no useful purpose and was an unjustified interference with NGN’s own rights under article 10 of the European Convention on Human Rights (“ECHR”). By a judgment published in slightly redacted terms on 18 April 2016, the Court of Appeal (Jackson, King and Simon LJJ) discharged the injunction: [2016] EWCA Civ 393. On 21 April 2016 the Supreme Court heard the appellant’s application for permission to appeal together with submissions relevant to the appeal, if permission was granted, and continued the interim injunction pending the delivery of the present judgment.
The statutory provisions
“Article 8
Right to respect for private and family life.
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.
Article 10
Freedom of expression.
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.”
“Freedom of expression.
(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.
(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied -
a. that the applicant has taken all practicable steps to notify the respondent; or
b. that there are compelling reasons why the respondent should not be notified.
(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.”
Cranston J’s decision
13. When refusing an injunction on 15 January 2016, Cranston J:
(i) accepted that the appellant had a reasonable expectation that his sexual activities would remain private,
(ii) added that he was “especially troubled” by the children’s privacy interests under ECHR article 8, though these could not operate as a “trump card”,
(iii) rejected the respondent’s suggestion that the proposed publication went to any relevant matter of “public debate”,
(iv) identified the appellant and his partner as portraying an image to the world of a committed relationship, accepted that “commitment may not entail monogamy”, but concluded that there was a public interest in correcting the image by disclosing that the appellant had engaged in the sort of casual sexual relationships demonstrated by the evidence, and
(v)
style='font:7.0pt "Times New Roman"'>
on that basis, and noting that the threshold test for granting an
interim injunction was in this context higher than the generally applicable test
in American Cyanamid Co
v
Ethicon Ltd [1975] AC 396, refused an
injunction.
The Court of Appeal judgment of 22 January 2016
(i) although the judge had correctly identified the children’s article 8 privacy rights, he had not explained how he had taken them into account;
(ii) once it was accepted that “commitment may not entail monogamy”, there was no false image to require correction by disclosure of the appellant’s occasional sexual encounters with others. In this connection, the Court of Appeal concluded positively that on the evidence before it the image presented by the appellant and his partner had been one of commitment not monogamy.
15.
The Court of Appeal went on to identify the well-established principle that
“kiss and tell” stories which do no more than satisfy readers’ curiosity about
the private lives of other persons, however well-known to the public, do not
serve any legally recognised public interest: see eg Couderc and Hachette
Filipacchi Associés v
France (Application No 41454/07), paras 100-101 and Axel
Springer AG
v
Germany (Application No 39954/08), para 91. The Supreme Court
will revert to this principle in paras 22-25 below.
16.
There was a respondents’ notice alleging additional grounds for
upholding the judge’s decision. In this connection, the Court of Appeal agreed
with the judge that the proposed publication did not go to any matter of public
debate: para 12(iii) above. Referring to Hutcheson v
News
Group
Newspapers
Ltd [2011] EWCA Civ 808, which itself refers back to Terry
v
Persons
Unknown [2010] EWHC 119 (QB), the Court accepted that the respondents were entitled
to publish articles critical of people in the public eye, even though there was
nothing illegal about their conduct. But it noted that the appellant had an
expectation that his sexual encounters would remain private, that the proposed
story would, if published, be “devastating” for him and that on any proper
balancing his article 8 right to privacy must prevail over the respondents’
article 10 right to publish an account of the adultery. It added that the position
of the children was also a factor to consider: the proposed article would
generate a media storm and much public interest in the appellant’s family, including
increased press attention to the children, meaning that the children would in
due course learn about the relevant matters from school friends and the
internet. On the evidence before the Court, the appellant was likely to
establish at trial that publication should not be allowed, and had therefore
satisfied the test in section 12(3) of the Human Rights Act 1998. The appeal
was therefore allowed and an injunction granted.
The Court of Appeal judgment of 18 April 2016
(i) accepted that claims based on confidentiality were to be distinguished from claims based on privacy, in that, while “claims for confidentiality generally fail once information has passed into the public domain”, the law “extends greater protection to privacy rights than rights in relation to confidential material” (paras 35-36);
(ii) concluded that “a claim for misuse of private information can and often will survive when information is in the public domain”, continuing (para 39):
“It depends on how widely known the relevant facts are. In many situations the claim for misuse of private information survives, but is diminished because that which the defendant publishes is already known to many readers. The publication is an invasion of privacy and hurtful for the claimant, but is not as egregious as it would otherwise be. That does not deprive the claimant of his claim for damages, but it weakens his claim for an injunction. This is for two reasons. First, the article 8 claim carries less weight, when the court carries out the balancing exercise of article 8 rights as against article 10 rights. Secondly, injunctions are a discretionary remedy. The fact that material is generally known is relevant to the exercise of the court’s discretion.”
(iii) added that:
“40. In this regard it is important to note that HRA section 12 does not affect the existence of the claimant’s article 8 claim nor does it provide any defence to the tort of misusing private information. The effect of section 12 is twofold. First, it enhances the weight which article 10 rights carry in the balancing exercise. Secondly, it raises the hurdle which the claimant must overcome in order to obtain an interim injunction.
41. Although it will be a
matter for the trial judge at the end of the day, I adhere to the view
I
expressed in January, namely that the story which NGN proposes to publish is
likely to be a breach of the claimant’s article 8 rights. What has changed is
the weight which the claimant’s article 8 rights carry, when balanced against
NGN’s article 10 rights. Also the fact that material is widely known must be
relevant to the court’s discretion.”
(iv)
accepted that “the court should not set aside an injunction merely
because it has met with widespread disobedience or defiance” (para 42), but
noted that this was not a case of disobedience by the media, and that the
difficulty about any submission of defiance was that “the Internet and social
networking have a life of their own”; furthermore, that an English court “has
little control over what foreign newspapers
and magazines may publish” (para
44); and that “it does appear that those who want to find out the individuals’
identities have already done so” (para 45).
18. In these circumstances, the Court concluded, in Jackson LJ’s words, that
“47. In the situation which now prevails, I still think that the claimant is likely to establish a breach of ECHR article 8. But, notwithstanding the limited public interest in the proposed story, I do not think that the claimant is ‘likely’ to obtain a permanent injunction. I reach this conclusion for seven reasons:
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)
style='font:7.0pt "Times New Roman"'>
As stated in para 59 of the previous redacted judgment (para 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)
style='font:7.0pt "Times New Roman"'>
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)
style='font:7.0pt "Times New Roman"'>
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.
48. I turn next to the
position of YMA and the children. As explained in para 39 of my previous
judgment, the interests of other family members, in particular children, are a
significant consideration, but they cannot be a trump card. Paragraph 61 of the
redacted judgment (para 63 of the full judgment) referred to the likelihood
that, in the absence of an injunction, the children would in the future learn
about these matters from school friends or the Internet. That is now a less
material consideration. In my view,
whether or not the court grants an
injunction, it is inevitable that the two children will in due course learn
about these matters.”
Analysis of the Court of Appeal’s judgment of 18 April 2016
(i) HRA section 12
19.
There is, as all members of the Supreme Court conclude, a clear error of
law in the Court of Appeal’s reasoning in relation to section 12. For reasons given
in para 20 below, it consists in the self-direction that section 12 “enhances
the weight which article 10 rights carry in the balancing exercise” (para 40). The
Court of Appeal’s further self-direction, that section 12 “raises the hurdle
which the claimant must overcome in order to obtain an interim injunction” is
unexceptionable, in so far as section 12 replaces the general American
Cyanamid test, focused on the balance of convenience, with a test of
whether the appellant is “likely to establish that publication should not be
allowed” at trial. The position was stated more particularly by Lord Nicholls
said in Cream Holdings Ltd v
Banerjee [2004] UKHL 44; [2005] 1 AC 253, para
22, in a speech with which the other members of the House agreed:
“Section 12(3) makes the likelihood of success at trial an essential element in the court’s consideration of whether to make an interim order. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order 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. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”
20.
The Court of Appeal’s initial self-direction is however contrary to
considerable authority, including authority at the highest level, which
establishes that, even at the interlocutory stage, (i) neither article has
preference over the other, (ii) where their values
are in conflict, what is
necessary is an intense focus on the comparative importance of the rights being
claimed in the individual case, (iii) the justifications for interfering with
or restricting each right must be taken into account and (iv) the proportionality
test must be applied: see eg In re S (A Child) (Identification:
Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 17, per
Lord Steyn, with whom all other members of the House agreed; McKennitt
v
Ash
[2006] EWCA Civ 1714; [2008] QB 73, para 47, per Buxton LJ, with whom the other
members of the Court agreed; and Mosley
v
News
Group
Newspapers
Ltd
[2008] EWHC 687 (QB), para 28, per Eady J, describing this as a “
very
well
established” methodology. The exercise of balancing article 8 and article 10
rights has been described as “analogous to the exercise of a discretion”: AAA
v
Associated
Newspapers
Ltd [2013] EWCA Civ 554, para 8). While that is at
best only an analogy, the exercise is certainly one which, if undertaken on a
correct basis, will not readily attract appellate intervention. The Court of
Appeal’s error in its initial self-direction is, however, one of potential
significance, since it necessarily affects the balance. By itself it would
require the Supreme Court to re-exercise the discretion which the Court of
Appeal exercised in setting aside the injunction which it had previously
granted. But there are further aspects of the Court of Appeal’s treatment of
the issues which together lead to the same conclusion.
(ii) The reference to a “limited public interest”
21.
The Court of Appeal in my opinion also erred in the reference it made,
at three points in its judgment (paras 13, 30 and 47), to there being in the
circumstances even a “limited public interest” in the proposed story and in its
introduction of that supposed interest into a balancing exercise (para 47(v)).
In identifying this interest, the Court of Appeal relied upon a point made by
an earlier Court of Appeal in Hutcheson (and before that by Eady J in Terry),
namely that the media are entitled to criticise the conduct of individuals even
where is nothing illegal about it. That is obviously so. But criticism of
conduct cannot be a pretext for invasion of privacy by disclosure of alleged
sexual infidelity which is of no real public interest in a legal sense. It is
beside the point that the appellant and his partner are in other contexts
subjects of public and media attention - factors without which the issue would
hardly arise or come to court. It remains beside the point, however much their
private sexual conduct might interest the public and help sell
newspapers
or
copy. The matter is well put by Anthony Lester (Lord Lester of Herne Hill) in a
recent book, Five Ideas to fight for (Oneworld, 2016), p 152: “
News
is a
business and not only a profession. Commercial pressures push papers to publish
salacious gossip and invasive stories. It is essential to ensure that those
pressures do not drive
newspapers
to
violate
proper standards of journalism.”
22.
That criticism of supposed infidelity cannot be the guise under which the
media can disclose kiss and tell stories of no public interest in a legal sense
is confirmed by a series of European Court of Human Rights (“ECtHR”) judgments.
Thus, in Armonienė v
Lithuania [2009] EMLR 7, para 39, the Court
emphasised the duty of the press to impart information and ideas on matters of
public interest, but noted that
“a fundamental distinction needs to be made between reporting facts - even if controversial - capable of contributing to a debate in a democratic society and making tawdry allegations about an individual’s private life”;
In Mosley v
United Kingdom [2012] EMLR 1, para 114,
the Court reiterated that
“there is a distinction to be
drawn between reporting facts - even if controversial - capable of contributing
to a debate of general public interest in a democratic society, and making tawdry
allegations about an individual’s private life (see Armonienė, para
39). In respect of the former, the pre-eminent role of the press in a democracy
and its duty to act as a ‘public watchdog’ are important considerations in
favour of a narrow construction of any limitations on freedom of expression.
However, different considerations apply to press reports concentrating on
sensational and, at times, lurid news,
intended to titillate and entertain,
which are aimed at satisfying the curiosity of a particular readership
regarding aspects of a person’s strictly private life (
Von
Hannover
v
Germany (2005) 40 EHRR 1, para 65; Hachette Filipacchi Associés (ICI
PARIS)
v
France, no 12268/03, para 40; and MGN Ltd
v
United Kingdom (2011) 53 EHRR 5, para 143). Such reporting does not attract the robust protection of
article 10 afforded to the press. As a consequence, in such cases, freedom of
expression requires a more narrow interpretation (see Société Prisma Presse
v
France (dec), nos 66910/01, [2003] ECHR 715, and 71612/01, 1 July 2003;
Von
Hannover,
cited above, para 66; Leempoel & SA E Ciné Revue
v
Belgium, no
64772/01, [2006] ECHR 2002, para 77, 9 November 2006; Hachette Filipacchi Associés (ICI PARIS),
cited above, para 40; and MGN Ltd, cited above, para 143.”
23.
Most recently, in Couderc and Hachette Filipacchi Associés v
France
(Application No 40454/07, [2015] ECHR 992 ), paras 100-101, the Court said:
“100. The Court has also
emphasised on numerous occasions that, although the public has a right to be
informed, and this is an essential right in a democratic society which, in
certain special circumstances, can even extend to aspects of the private life
of public figures, 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 (see Von
Hannover, cited above, para 65; MGN
Ltd
v
United Kingdom, no 39401/04, [2011] ECHR 66, para 143, 18 January 2011; and Alkaya
v
Turkey, no. 42811/06, [2012] ECHR 1790, para 35, 9 October 2012).
101. Thus, an article about the
alleged extra-marital relationships of high-profile public figures who were
senior State officials contributed only to the propagation of rumours, serving
merely to satisfy the curiosity of a certain readership (see Standard
Verlags
GmbH
v
Austria (No 2), no 21277/05, [2009] ECHR 853, para 52, 4 June 2009). Equally,
the publication of photographs showing scenes from the daily life of a princess
who exercised no official functions was aimed merely at satisfying the
curiosity of a particular readership (see
Von
Hannover, cited above,
para 65, with further references). The Court reiterates in this connection that
the public interest cannot be reduced to the public’s thirst for information
about the private life of others, or to the reader’s wish for sensationalism or
even
voyeurism.”
24.
In these circumstances, it may be that the mere reporting of sexual
encounters of someone like the appellant, however well known to the public,
with a view
to criticising them does not even fall within the concept of
freedom of expression under article 10 at all. But, accepting that article 10
is not only engaged but capable in principle of protecting any form of
expression, these cases clearly demonstrate that this type of expression is at
the bottom end of the spectrum of importance (compared, for example, with
freedom of political speech or a case of conduct bearing on the performance of
a public office). For present purposes, any public interest in publishing such
criticism must, in the absence of any other, legally recognised, public
interest, be effectively disregarded in any balancing exercise and is incapable
by itself of outweighing such article 8 privacy rights as the appellant enjoys.
(iii) The distinction between rights of confidence and privacy rights
25.
Mr Desmond Browne QC for the appellant submits the Court of Appeal also erred
by too close an assimilation of a claim based on the tort of invasion of
privacy with breach of confidence. Jackson LJ recognised, correctly, that the
former attracts greater protection than the latter (para 36 of his judgment:
see para 17(i) above). But he went on in para 39 to suggest that, whether a
claim for misuse of private information will survive when information is in the
public domain “depends on how widely known the relevant facts are”. That
suggests a quantitative test, measuring what has already been disclosed with
what is yet undisclosed. That is a test which is not only appropriate but
potentially decisive in the context of an application based on confidentiality,
as witnessed famously by Sunday Times v
United Kingdom (No 2) (“Spycatcher
No 2”) (1992) 14 EHRR 229, paras 54-55. There, the loss of secrecy by 30
July 1987 was central to the European Court of Human Rights’ conclusion that
injunctions could after that date no longer be justified either as necessary to
ensure a fair trial or to protect national security. The promotion of the
efficiency and reputation of the Security Service constituted insufficient
justification.
26.
However, different considerations apply to the present privacy claim.
First, as Mr Browne submits, a quantitative approach overlooks the invasiveness
and distress involved, even in repetition of private material. Second, open
hard copy exposure, as well no doubt as further internet exposure, is likely to
add significantly to the overall intrusiveness and distress involved. I return
to the second point in paras 34-37 below. As to the first point, there is substantial
recent authority recognising that even “the repetition of known facts about an
individual may amount to unjustified interference with the private lives not
only of that person but also of those who are involved with him”: JIH v
News
Group
Newspapers
Ltd [2010] EWHC 2818 (QB), para 59, per Tugendhat J. The
Court of Appeal referred (in para 25) to the submission which Mr Browne made
before it to like effect, and to the supporting authority which he cited, but did
not, Mr Browne submits, give effect to it in its decision. The point made in JIH
is worth elaborating for its resonance on this appeal. It can be traced
back to Attorney General
v
Guardian
Newspapers
Ltd (No 2) [1990] 1 AC 109, 260F, where Lord Keith gave examples of circumstances in which a person could
be entitled to restrain disclosure of private information, which had received widespread
publication abroad. It was taken up by Eady J in McKennitt
v
Ash [2006] EMLR 10, para 81, by Tugendhat J in Green Corns Ltd
v
Claverley
Group
Ltd
[2005] EMLR 748, paras 78-79, where he said that the question was not whether
information was generally accessible, but rather whether an injunction would
serve a useful purpose and by Briggs J in Rocknroll
v
News
Group
Newspapers
Ltd [2013] EWHC 24 (Ch), paras 22-26, where he also said that HRA section
12(4)(a)(i) in his judgment “creates no separate or different test …, at least
where … there is no suggestion that the material is about to become available
to the public”.
27.
Eady J and Tugendhat J have since further elaborated the significance of
the principle in successive judgments in CTB v
News
Group
Newspapers
Ltd [2011] EWHC 1326 (QB) and 1334 (QB). In CTB, as in the present case, an interim
injunction had been granted to restrain disclosure of information about an
alleged sexual relationship. In CTB the claimant was a well-known
footballer who was married and had a family. In the five or so weeks after the
injunction was granted, substantial information, from sources which could not
be attributed to the defendant, became available on Twitter and the internet
generally identifying or pointing towards the footballer. The defendants argued
in effect that privacy injunctions (and no doubt other forms of injunction
also) had ceased to serve any useful purpose in an age when information could be
put out on
various
networks within or outside this jurisdiction by persons
other than the immediate defendant.
28.
More specifically, the defendants in CTB also placed reliance on
Eady J’s refusal of an injunction to Mr Max Mosley in Mosley v
News
Group
Newspapers
Ltd [2008] EWHC 687 (QB). Eady J had there said that:
“The court should guard against
slipping into playing the role of King Canute. Even though an order may be
desirable for the protection of privacy, and may be made in accordance with the
principles currently being applied by the courts, there may come a point where
it would simply serve no useful purpose and would merely be characterised, in
the traditional terminology, as a brutum fulmen. It is inappropriate for the
court to make vain
gestures.”
In CTB Eady J explained why this statement did not cover the circumstances in CTB:
“18. The circumstances here
are rather different. In Mosley, I took the view
that there was no point
in granting an injunction because, even before the application was made,
several hundred thousand people had seen the intimate
video
footage which NGN
had put on line - conduct that was recently characterised by the ECtHR as a ‘flagrant
and unjustified intrusion’: Mosley
v
UK (Application No 48009/08), 10 May
2011 at 104. In a real sense, therefore, it could be said that there was
nothing left for the court to protect by an injunction.
19. Here, the Internet
allegations prayed in aid by Mr Spearman took place after the order was made.
Different policy considerations come into play when the court is invited to
abandon the protection it has given a litigant on the basis of widespread
attempts to render it ineffective. Furthermore, unlike the Mosley case, there
is no doubt other information that Ms Thomas could yet publish, quite apart
from this claimant’s identity, which is not yet in the public domain. The
injunction thus continues to serve a useful purpose, from the claimant’s point
of view,
for that reason alone, since she is amenable to the jurisdiction of
the court. Otherwise, he would not seek to maintain it.
20. Mr Spearman’s
application is therefore quite narrow. He seeks only to vary
the injunction so
as to permit the claimant to be identified. …”
In the circumstances, Eady J held that even identification should not be permitted. It will be apparent that the circumstances in CTB bore some relevant similarities to those of the present case. In particular, reliance was placed on internet disclosures subsequent to the original injunction in support of an application to set aside the injunction on the basis that it served no further useful protective purpose. This situation was distinguished in principle from that where an injunction is granted after substantial internet disclosure. The substantial internet disclosure which had occurred after the injunction was not regarded as justifying the lifting of the injunction. The injunction, enforceable against the defendant, was seen as continuing to serve a useful purpose.
“23. It is important always to
remember that the modern law of privacy is not concerned solely with
information or ‘secrets’: it is also concerned importantly with intrusion. … [That]
also largely explains why it is the case that the truth or falsity of the
allegations in question can often be irrelevant: see eg McKennitt v
Ash
[2008] QB 73 at 80 and 87.
24. It is fairly obvious
that wall-to-wall excoriation in national newspapers,
whether tabloid or
‘broadsheet’, is likely to be significantly more intrusive and distressing for
those concerned than the availability of information on the Internet or in
foreign journals to those, however many, who take the trouble to look it up.
Moreover, with each exposure of personal information or allegations, whether by
way of
visual
images or
verbally,
there is a new intrusion and occasion for
distress or embarrassment. Mr Tomlinson argues accordingly that ‘the dam has
not burst’. For so long as the court is in a position to prevent some of that
intrusion and distress, depending upon the individual circumstances, it may be
appropriate to maintain that degree of protection. The analogy with King Canute
to some extent, therefore, breaks down.
25 It may be thought that
the wish of NGN to publish more about this ‘story’, with a view
to selling
newspapers
and perhaps achieving other commercial advantages, demonstrates that
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.
26. In these circumstances,
it seems to me that the right question for me to ask, in the light of JIH v
News
Group
Newspapers
Ltd [2011] 2 All ER 324 and In re Guardian
News
and Media Ltd [2010] UKSC 1, is whether there is a solid reason why the
claimant’s identity should be generally revealed in the national media, such as
to outweigh the legitimate interests of himself and his family in maintaining
anonymity. The answer is as yet in the negative. They would be engulfed in a
cruel and destructive media frenzy. Sadly, that may become unavoidable in the
society in which we now live but, for the moment, in so far as I am being asked
to sanction it, I decline to do so. On the other side, …, it has not been
suggested that there is any legitimate public interest in publishing the
story.”
The analysis in these passages is both relevant and indeed largely transposable to the circumstances of the present appeal.
“3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.”
31.
Tugendhat J’s reasoning in JIH and Eady J’s reasoning in CTB were cited with approval
by MacDonald J in H v
A (No 2) [2015] EWHC 2630 (Fam), para 47. In so far
as it is likely that the respondents in the present case would wish to
accompany any stories with pictures of the relevant individuals, it is also consistent
with the Leveson Inquiry Report’s conclusion (para 3.4) that:
“There is a qualitative difference
between photographs being available online and being displayed, or blazoned, on
the front page of a newspaper
such as the Sun. The fact of publication in a
mass circulation
newspaper
multiplies and magnifies the intrusion, not simply
because more people will be
viewing
the images, but also because more people
will be talking about them. Thus, the fact of publication inflates the apparent
newsworthiness
of the photographs by placing them more firmly within the public
domain and at the top of the
news
agenda.”
32.
It is right that the Supreme Court should on the present application
express its own view
on the correctness of the approach taken in the authorities
discussed in the preceding paragraphs (paras 26-32). In my opinion, the
approach is sound in general principle. Every case must be considered on its
particular facts. But the starting point is that (i) there is not, without
more, any public interest in a legal sense in the disclosure or publication of
purely private sexual encounters, even though they involve adultery or more
than one person at the same time, (ii) any such disclosure or publication will
on the face of it constitute the tort of invasion of privacy, (iii) repetition
of such a disclosure or publication on further occasions is capable of
constituting a further tort of invasion of privacy, even in relation to persons
to whom disclosure or publication was previously made - especially if it occurs
in a different medium (see paras 34-37 below).
(i) the extent to which the material has, or is about to, become available to the public and
(ii) the extent to which it is, or would be, in the public interest for the material to be published.
Under section 12(4)(b), the courts must also have particular regard to any relevant privacy code.
a) the nature of the journalistic material involved and the medium in which it is, or is to be, expressed, and
b) the extent to which it is already available in that medium and the extent to which steps are being or can be taken to remove or limit access to any other publication in that or any other medium.
In short, the question whether material has, or is about to, become available to the public should be considered with reference to, inter alia, the medium and form in relation to which injunctive relief is sought.
36.
As to section 12(4)(b), this is of particular relevance in relation to
the appellant’s and his partner’s children. The respondents subscribe to the
Independent Press Standards Organisation (“IPSO”), whose Editors’ Code of
Practice of January 2016 provides that “Everyone is entitled to respect for
his or her private and family life” and that editors “will be expected to
justify intrusions into any individual’s private life without consent” (clause 3(i)
and (ii)). The Code notes that there can be exceptions in the public interest,
emphasising however that “editors must demonstrate an exceptional public
interest to over-ride the normally paramount interests of [children under 16])”.
The last point echoes the thinking in article 3(1) of the United Nations
Convention on the Rights of the Child (providing that “In all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration”) which has in
turn informed the ECtHR’s and United Kingdom courts understanding of ECHR
article 8: see eg ZH (Tanzania) v
Secretary of State for the Home Department
[2011] 2 AC 166, H
v
Lord Advocate 2012 SC (UKSC) 308, H (H)
v
Deputy
Prosecutor of the Italian Republic (Genoa) [2013] 1 AC 338 and Zoumbas
v
Secretary of State for the Home Department [2013] 1 WLR 3690.
(iv) An effective remedy
39.
By exercising its discretion so as to discharge the injunction, Mr
Browne submits, the Court of Appeal failed to ensure that the appellant’s
privacy rights were “practical and effective”: Von
Hannover
v
Germany,
para 40, Armonienė
v
Lithuania, para 38. The submission must, however,
be approached with caution at a European level, because in Mosley
v
United
Kingdom [2012] 2012] EMLR 1, para 120, the ECtHR (when considering whether
the Convention required the media, before publishing potentially private
material, to inform the subject of such material) observed that
“in its examination to date of the
measures in place at domestic level to protect article 8 rights in the context
of freedom of expression, it has implicitly accepted that ex post facto damages
provide an adequate remedy for violations
of article 8 rights arising from the
publication by a
newspaper
of private information.”
The ECtHR went on to explain Armonienė v
Lithuania
as a case where damages had not provided an adequate remedy, because of the
“derisory sum” that had been awarded.
40.
On the other hand, in Mosley v
United Kingdom the ECtHR was
primarily engaged in delimiting the scope of ECHR rights, particularly with
regard to pre-notification, at a European level. It was not excluding the
possibility of or justification for a prior restraint on publication in
appropriate cases at a domestic level. Indeed, it upheld such a prior restraint
in Editions Plon
v
France (2006) 42 EHRR 36. Further, it said this in Mosley
(para 117):
“117. Finally, the Court has
emphasised that while article 10 does not prohibit the imposition of prior
restraints on publication, the dangers inherent in prior restraints are such
that they call for the most careful scrutiny on the part of the Court. This is
especially so as far as the press is concerned, for news
is a perishable
commodity and to delay its publication, even for a short period, may well
deprive it of all its
value
and interest (see Observer and Guardian
v
United
Kingdom (26 November 1991, (1992) 14 EHRR 153, para 60). The Court would,
however, observe that prior restraints may be more readily justified in cases
which demonstrate no pressing need for immediate publication and in which there
is no obvious contribution to a debate of general public interest.”
In the present case, it can be said that there is no urgency about any publication, as well as no evident contribution to any debate of general public interest.
41.
At a domestic level, the Court of Appeal has itself also recognised that
the refusal of an interlocutory injunction can operate as “a strong potential
disincentive to respect for aspects of private life” and that, depending on the
circumstances, it may only be by the grant of such an injunction that privacy
rights can be satisfactorily protected: Douglas v
Hello! Ltd (No 3) [2006] QB 125, paras 257 and 259; and that such an injunction may be “the only remedy
which is of any
value”:
A
v
B plc [2003] QB 195, para 11. Damage done by
publication of a defamatory statement can be redressed by a public finding at
trial that the allegation was false, but an invasion of privacy cannot be cured
in a similar way, and for that reason there may never be a trial, whatever
damages might be recoverable. These points are also recognised in the academic
writing: see eg Freedom of Speech (OUP, 2006), by Professor Eric
Barendt, p 137 and Privacy and Press Freedom (Blackstone, 1995), by Professor Raymond Wacks, p 156.
42.
Mr Browne further notes, with reference to the first instance decision
of Mosley v
News
Group
Newspapers
[2008] EMLR 20, that it has been held
at first instance that exemplary or punitive damages are not recoverable at
common law for misuse of private information. On the other hand, the contrary
remains open to argument at higher levels, and whether an account of profits
might be claimed is likewise open. (In future, there may be a statutory
possibility of obtaining an award of exemplary damages against a publisher not
a member of an approved regulator; that is under sections 34-36 of the Crime
and Courts Act 2013, if a court were to be satisfied that the respondents’
conduct “has shown a deliberate or reckless disregard of an outrageous nature
for the claimant’s rights”, that “the conduct is such that the court should
punish the defendant for it” and that “other remedies would not be adequate to
punish that conduct”. But no approved regulator at present exists, so that the
section has no application to the present case.)
Conclusions
44.
The circumstances of this case present the Supreme Court with a
difficult choice. As in the Court of Appeal, so before the Supreme Court the
case falls to be approached on the basis that the appellant is likely at trial
to establish that the proposed disclosure and publication is likely to involve
further tortious invasion of privacy rights of the appellant and his partner as
well as of their children, who have of course no conceivable involvement in the
conduct in question. The invasion would, on present evidence, be clear, serious
and injurious. On the other hand, those interested in a prurient story can, if
they try, probably read about the identities of those involved and in some
cases about the detail of the conduct, according to where they may find it on
the internet. The Court will be criticised for giving undue protection to a
tawdry story by continuing the injunction to trial. There is undoubtedly also
some risk of further internet, social media or other activity aimed at making the
Court’s injunction seem vain,
whether or not encouraged in any way by any
persons prevented from publishing themselves. On the other hand, the legal
position, which the Court is obliged to respect, is clear. There is on present
evidence no public interest in any legal sense in the story, however much the
respondents may hope that one may emerge on further investigation and/or in
evidence at trial, and it would involve significant additional intrusion into
the privacy of the appellant, his partner and their children.
LORD NEUBERGER: (with whom Lady Hale, Lord Mance and Lord Reed agree)
46.
The issue which we have to decide is whether to uphold or reverse the
decision of the Court of Appeal to lift an interlocutory injunction which it
had previously granted at the suit of PJS,
who is married to YMA, and they have
two young children. That interlocutory injunction restrained NGN until trial or
further order from publishing a story about a sexual relationship between
PJS
and AB and another, a story which had been communicated to
News
Group
Newspapers
Ltd, NGN, by AB. I agree that we should reverse the decision and continue,
or re-impose, the interlocutory injunction, for the reasons given in the
judgment of Lord Mance, and I also agree with Lady Hale. Because we are
reversing the Court of Appeal and are not unanimous in doing so, I add a few
words of my own.
The history in summary
47.
After NGN had obtained the story from AB, they very
properly informed
PJS
of their intention to publish it in the Sun on Sunday
newspaper.
PJS’s
case was and remains that this would be unlawful as it would
violate
his
legal rights as it would be an unlawful misuse of his private information.
Accordingly, he immediately issued proceedings against NGN seeking a permanent
injunction to prevent such publication. Because a permanent injunction can only
be granted after a trial, NGN would have been able to publish the story in the
meantime. Accordingly,
PJS
also immediately applied for a temporary, or
interlocutory, injunction to restrain NGN from publishing the story until the
trial.
48.
NGN resisted both the proceedings and the grant of the interlocutory
injunction on the ground that the public interest in freedom of expression and
in the story being published outweighed any privacy rights enjoyed by PJS.
Cranston J decided that NGN were right and refused
PJS
an interlocutory
injunction (but granted one
very
temporarily to enable
PJS
to appeal).
PJS
appealed to the Court of Appeal which on 22 January 2016, granted an
interlocutory injunction for reasons given by Jackson LJ. In summary, he
considered that
PJS
had a legally recognised expectation of privacy, that there
was no public interest in the story being published, that
PJS
therefore had a
strong case that publication of the story would infringe his legal rights, that
such publication would be “devastating” for
PJS,
that there would be “increased
press attention” paid to his children, and that “when this action comes to
trial, [
PJS]
is likely to establish that publication should not be allowed” -
[2016] EWCA Civ 100.
49.
Thereafter, the story was published in a newspaper
in the United States,
in Canada and in Scotland, and it has been available to the public in England
and Wales to the extent described by Lord Mance in paras 6-8 above. As a
result, NGN applied to the Court of Appeal to lift the interlocutory injunction
on the ground that the dissemination of the story since January 2016 meant that
the information was now out in the public domain to such an extent that a
permanent injunction would not be granted at trial, so that the interlocutory
injunction should therefore be discharged. On 18 April 2016, the Court of
Appeal, for reasons given by Jackson LJ, accepted that argument and discharged
the interlocutory injunction - [2016] EWCA Civ 393. The Court of Appeal
nonetheless stayed the discharge of the injunction for two days to enable
PJS
to apply to this Court. We decided to hear
PJS’s
application for permission to
appeal to this Court together with the arguments which the parties wished to
raise on any appeal, and to continue the stay until we had determined the
application and any appeal.
Can this Court consider whether to continue the interlocutory injunction?
51.
First, although he gave an impressive and careful judgment, Jackson LJ
misdirected himself in an important respect when reaching the decision to
discharge the interlocutory injunction which had been previously granted.
Having rightly said that it was necessary to balance PJS’s
right to respect for
his private and family life against NGN’s right to freedom of his expression,
he said that section 12 of the Human Rights Act “enhances the weight” to be
given to the latter factor. However, that is not right. As Lord Steyn made
clear in In re S (A Child) [2005] 1 AC 593, para 17, each right has
equal potential force in principle, and the question is which way the balance
falls in the light of the specific facts and considerations in a particular
case. This was an error which entitles, indeed obliges, us to reconsider the
question of discharging the interlocutory injunction.
52.
Secondly, there is an argument that it was wrong to proceed on the basis
that the story had what Jackson LJ described as “limited”, as opposed to no,
“public interest”. Of course, there is always a public interest in anyone -
particularly, some may think, the media - having the right to say what they
want. As Jackson LJ rightly said in his first judgment in this case at para 55,
“[freedom of expression is an important right for its own sake”; and that is
recognised by section 12(4) of the Human Rights Act 1998, which provides that
“[t]he court must have particular regard to the importance of the Convention
right to freedom of expression”. However, following section 12(4)(a)(ii) of the
1998 Act, it appears to me that it was the public interest (as opposed to the
interests of some members of the public) in the story being published which
Jackson LJ was describing. In his earlier judgment in which he decided to grant
the injunction, Jackson LJ decided that there was no public interest in the
story being published (see [2016] EWCA Civ 100, para 53), and, as that finding
has unsurprisingly not been appealed, it must be accepted, at least until
trial. Having said that, I very
much doubt that this factor would have been
enough to persuade me that we could reconsider the question of continuing the
interlocutory injunction, but, in the light of what I say in para 51 above and
para 53 below, that is an academic point.
53.
Thirdly, it appears to me that the Court of Appeal overlooked, or at any
rate gave insufficient weight to, the intrusive and distressing effect on PJS
and his family of
newspaper
coverage of the story, to some extent conflating
that question with confidentiality. I will say more about that aspect in the
next section of this judgment.
The continuation of the interlocutory injunction
54.
It is therefore for this Court to decide whether or not to re-impose the
interlocutory injunction, it appears to me that the central issue in that
connection is whether the trial judge would be likely to grant a permanent
injunction when this case comes to trial. Section 12(3) of the 1998 Act
precludes the grant of an interlocutory injunction unless a permanent
injunction is “likely” to be granted at trial; on the other side of things, it
is hard to see why, in this case at least, an interlocutory injunction should
not be granted (and, a fortiori, continued) if a permanent injunction is
likely to be granted. In this context, the proper approach to likelihood is as
set out by Lord Nicholls in Cream Holdings Ltd v
Banerjee [2005] 1 AC 253, para 22, which is set out by Lord Mance in para 19 above.
56.
On that centrally relevant issue, it must be remembered that this is an
application to discharge an interlocutory judgment before the trial of the
action concerned. NGN’s case must therefore be that the interlocutory
injunction should be revoked because of “some significant change of
circumstances” since it was granted in January 2016 - Thevarajah v
Riordan [2016] 1 WLR 76 para 18 citing Buckley LJ in Chanel Ltd
v
F W Woolworth & Co
Ltd [1985] 1 WLR 485, 492-493. Accordingly, with the exception of the
effects of the subsequent publicity referred to in para 55 above, the
conclusions reached in the first judgment of the Court of Appeal must be
assumed to be correct; in particular, it must be assumed that there is no
public interest in publication of the story, and that, were it not for the
publicity which has occurred since January 2016, it is likely that a permanent
injunction would be granted.
57.
If PJS’s
case was simply based on confidentiality (or secrecy), then, while
I would not characterise his claim for a permanent injunction as hopeless, it
would have substantial difficulties. The publication of the story in
newspapers
in the United States, Canada, and even in Scotland would not, I think, be
sufficient of itself to undermine the claim for a permanent injunction on the
ground of privacy. However, the consequential publication of the story on
websites, in tweets and other forms of social network, coupled with
consequential oral communications, has clearly resulted in many people in
England and Wales knowing at least some details of the story, including the
identity of
PJS,
and many others knowing how to get access to the story. There
are claims that between 20% and 25% of the population know who
PJS
is, which,
it is fair to say, suggests that at least 75% of the population do not know the
identity of
PJS,
and presumably more than 75% do not know much if anything
about the details of the story. However, there comes a point where it is simply
unrealistic for a court to stop a story being published in a national
newspaper
on the ground of confidentiality, and, on the current state of the evidence, I
would, I think, accept that, if one was solely concerned with confidentiality,
that point had indeed been passed in this case.
58.
However, claims based on respect for privacy and family life do not
depend on confidentiality (or secrecy) alone. As Tugendhat J said in Goodwin
v
News
Group
Newspapers
Ltd [2011] EMLR 27, para 85, “[t]he right to
respect for private life embraces more than one concept”. He went on to cite
with approval a passage written by Dr Moreham in Law of Privacy and the
Media (2nd ed (2011), edited by Warby, Moreham and Christie), in which she
summarised “the two core components of the rights to privacy” as “unwanted
access to private information and unwanted access to [or intrusion into] one’s
… personal space” - what Tugendhat J characterised as “confidentiality” and
“intrusion”.
59.
Tugendhat J then went on to identify a number of cases where “intrusion
had been relied on by judges to justify the grant of an injunction despite a
significant loss of confidentiality”, namely Blair v
Associated
Newspapers
Ltd (10 March 2000, Morland J), West
v
BBC (10 June 2002, Ouseley
J), McKennitt
v
Ash [2006] EMLR 10, para 81 (Eady J), X & Y
v
Persons Unknown [2007] EMLR 290, para 64 (Eady J), JIH
v
News
Group
Newspapers
Ltd [2011] EMLR 9, paras 58-59 (Tugendhat J), TSE
v
News
Group
Newspapers
Ltd [2011] EWHC 1308 (QB), paras 29-30
(Tugendhat J) and CTB
v
News
Group
Newspapers
Ltd [2011] EWHC 1326 (QB),
para 23 (Eady J), to which can be added CTB
v
News
Group
Newspapers
Ltd [2011] EWHC 1334 (QB), para 3 (Tugendhat J), Rocknroll
v
News
Group
Newspapers
Ltd
[2013] EWHC 24 (Ch), para 25 (Briggs J), and H
v
A (No 2) [2015] EWHC 2630 (Fam), paras 66-69 (MacDonald J).
60. Perusal of those decisions establishes that there is a clear, principled and consistent approach at first instance when it comes to balancing the media’s freedom of expression and an individual’s rights in respect of confidentiality and intrusion. There has been not even a hint of disapproval of that approach by the Court of Appeal (although it considered appeals in McKennitt [2008] QB 73 and JIH [2011] 1 WLR 1645). Indeed, unsurprisingly, there has been no argument that we should take the opportunity to overrule or depart from them. Accordingly, it seems to me that it is appropriate for this Court to adhere to the approach in those cases. Not only do they demonstrate a clear and consistent approach, but they are decisions of judges who are highly respected, and, at least in the main, highly experienced in the field of media law and practice; and they were mostly decided at a time when access to the internet was easily available to the great majority of people in the United Kingdom.
61.
The significance of intrusion, as opposed to confidentiality, in these
decisions was well explained in the judgment of Eady J in CTB [2011] EWHC 1326 (QB), where he refused an application by a newspaper
to
vary
an
interlocutory injunction because of what he referred to as “widespread coverage
on the Internet”. At para 24 he said that “[i]t is fairly obvious that
wall-to-wall excoriation in national
newspapers
… is likely to be significantly
more intrusive and distressing for those concerned than the availability of
information on the Internet or in foreign journals to those, however many, who
take the trouble to look it up”. As he went on to say in the next paragraph of
his judgment, in a case such as this, “[f]or so long as the court is in a
position to prevent some of that intrusion and distress, depending upon the
individual circumstances, it may be appropriate to maintain that degree of
protection”.
62. The same approach was taken by Tugendhat J in a later judgment in the same case, CTB [2011] EWHC 1334 (QB), when refusing a further application to lift the interlocutory injunction after the applicant’s name had been mentioned in the House of Commons. At para 3, having accepted that it was “obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose”, he said that “in so far as its purpose is to prevent intrusion or harassment, it has not failed”. Indeed, he regarded the fact that “tens of thousands of people have named the claimant on the internet” as confirming, rather than undermining, the argument that “the claimant and his family need protection from intrusion into their private and family life”.
63.
It also seems to me that if there was no injunction in this case, there
would be greater intrusion on the lives of PJS
and YMA through the internet.
There may well be room for different
views
as to whether the lifting of the
injunction would lead to an increase or a decrease in tweets and other electronic
communications relating to the story. However, if the identity of
PJS
and the
story could be communicated within England and Wales, then it would be likely
that anyone in this jurisdiction who was searching for
PJS
(or indeed YMA)
through a search engine, for reasons wholly unconnected with the story, would
find prominent links to that story. But if search engines serving England and
Wales are geo-blocked from mentioning
PJS,
or indeed YMA, in connection with
the story, as they should be so long as an injunction is in place, this would
not happen. It might be said that
PJS
and YMA could ask the search engine
operators to remove any links to the story pursuant to the decision of the
Court of Justice in Google Spain SL
v
Agencia Espańola de Protección de
Datos (Case C-131/12) [2014] QB 1022, but it seems unlikely that the
reasoning in that case could apply to a story which has only recently become
public and is being currently covered in the
newspapers.
64.
In the instant case, Jackson LJ said in his first judgment, when
granting the interlocutory injunction, that “[t]he proposed article would
generate a media storm and much public interest in [PJS’s]
family. There would
be increased press interest in [his] and YMA’s family life. The children would
become the subject of increased press attention, with all that that entails”.
There is no reason to think that that would be significantly different now,
despite the internet coverage of the story - and indeed it may be that the
press interest and attention identified by Jackson LJ in that passage would be
increased as a result of the internet coverage.
65.
In my view,
the case for lifting the interlocutory injunction imposed in
January 2016 has not been made out. The publication of the story and the
identification of
PJS
in the electronic media since January 2016 has
undoubtedly severely undermined (and probably, but not necessarily, demolished)
PJS’s
claim for an injunction in so far as he relies on confidentiality.
However, I am unconvinced, on the basis of the evidence and arguments we have
heard, that it has substantially reduced the strength of his claim in so far as
it rests on intrusion. Bearing in mind those factors and the lack of public
interest in the story being published, as well as the factors mentioned by Lord
Mance and Lady Hale, I consider that the interlocutory injunction should be
continued until trial (or further order in the meantime).
66.
One argument for discharging the injunction which I have not so far
mentioned is that it may be arguable that things have got to the stage where it
would be less damaging to PJS
for the story to be published in the Sun on
Sunday and other
newspapers
and got out of the way in one go, with all the
intrusion that that would entail, as opposed to the potential drip-feeding of
the story on the internet coupled with oblique references in the print media,
often coupled with indignation at being unable to report the story. It is
very
hard indeed to assess the strength of that argument at least on the basis of
the evidence which we were taken to. Further, it is a point which was scarcely,
if at all, relied on by NGN, and it is a point on which the
view
and experience
of
PJS
and his family should, I would have thought, carry some weight.
Accordingly, I am not persuaded that it should carry the day for NGN at least
at this stage.
Concluding remarks
67.
I would therefore grant PJS
permission to appeal to this Court, set
aside the decision of the Court of Appeal given on 18 April 2016, and continue
the injunction granted on 22 January 2016, until trial or further order in the
meantime.
68.
In summary terms this is because it seems likely that PJS
will establish
at trial that (i) publication of the story in the Sun on Sunday would be
an unlawful breach of his rights, and (ii) he should be entitled to an
injunction to restrain it, because of the consequential intrusion into his and
his family’s private lives. It is one thing for what should be private
information to be unlawfully disseminated; it is quite another for that
information to be recorded in eye-catching headlines and sensational terms in a
national
newspaper,
or to be freely available on search engines in this
jurisdiction to anyone searching for
PJS
or YMA, or indeed AB, by name in a
different connection. If, as seems to me likely on the present state of the
evidence and the current state of the law,
PJS
will succeed in obtaining such
an injunction at trial, then it follows that he ought to be granted an
injunction to restrain publication of the story in the meantime.
69.
I referred in para 66 above to the indignation of the newspapers.
It is
easy to understand, and indeed to sympathise with, the concern of NGN and other
newspapers
at being excluded from reporting in this jurisdiction a story which
is available, at least in part, to people in this country
via
electronic media.
I appreciate that it is scant consolation, but the fact is that this situation
arises from the perception 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.
71.
In the light of the facts as they currently appear and the law as it has
now been developed, it appears to me that the interlocutory injunction sought
by PJS
should be granted. The courts exist to protect legal rights, even when
their protection is difficult or unpopular in some quarters. And if Parliament
takes the
view
that the courts have not adapted the law to fit current
realities, then, of course, it can change the law, for instance by amending
section 12 of the 1998 Act.
LADY HALE: (with whom Lord Neuberger, Lord Mance and Lord Reed agree)
72.
I agree that this appeal should be allowed and the interim injunction
restored for the reasons given by Lord Mance. I wish only to add a few words
about the interests of the two children whom PJS
has with YMA. It is simply not
good enough to dismiss the interests of any children who are likely to be
affected by the publication of private information about their parents with the
bland statement that “these cannot be a trump card”. Of course they cannot
always rule the day. But they deserve closer attention than they have so far
received in this case, for two main reasons. First, not only are the children’s
interests likely to be affected by a breach of the privacy interests of their
parents, but the children have independent privacy interests of their own. They
also have a right to respect for their family life with their parents.
Secondly, by section 12(4)(b), any court considering whether to grant either an
interim or a permanent injunction has to have “particular regard” to “any
relevant privacy code”. It is not disputed that the IPSO Code, which came into
force in January, is a relevant Code for this purpose. This, as Lord Mance has
explained, provides that “editors must demonstrate an exceptional public
interest to over-ride the normally paramount interests of [children under 16]”.
73.
This means that, at trial, the court will have to consider carefully the
nature and extent of the likely harm to the children’s interests which will
result in the short, medium and longer terms from the publication of this
information about one of their parents. At present, there is no evidence about
this. It is possible that, at trial, the evidence will not support any risk of
harm to the children’s interests from publication of the story in the English
print and broadcasting media. It is possible that the evidence will indicate
that the children can be protected from any such risk, by a combination of the
efforts of their parents, teachers and others who look after them and some
voluntary
restraint on the part of the media.
74.
On the other hand, it is also possible that the evidence will support a
risk of harm to the children’s interests from the invasion of their own and
their parents’ privacy, a risk from which it will be extremely difficult to
protect them. There is all the difference in the world between the sort of wall
to wall publicity and intrusion which is likely to meet the lifting of this
injunction and their learning this information in due course, which the Court
of Appeal thought inevitable. For one thing, the least harmful way for these
children to learn of these events is from their parents. Their parents have the
resources to take wise professional advice about how to reveal and explain
matters to their children in an age-appropriate way and at the age-appropriate
time. No doubt their parents are already giving careful thought to whether this
might be the best way of protecting their children, especially from the spike
of interest which is bound to result from this judgment let alone from any
future judgment. The particular features which are relevant to the balancing
exercise in this case are contained in three short paragraphs in the unredacted
version
of this judgment. These unfortunately have to be redacted because it
would be comparatively easy to surmise the identity of the children and their
parents from them. There are particular reasons why care should be taken about
how, when and why these children should learn the truth.
78.
In the leading case of In re S (A Child) (Identification:
Restrictions on Publication) [2005] 1 AC 593, very
careful
consideration was given, at first instance, in the Court of Appeal and in the House
of Lords, to balancing the public interest in publishing the name of a woman
accused of murdering her child against the welfare interests of her surviving
child who was living with his father. The public interest, in the legal sense,
of publication was
very
strong. There was expert evidence of the welfare
interests of the surviving child. It could not be more different from this
case. As Lord Mance has demonstrated, there is no public interest in the legal
sense in the publication of this information. There is no expert evidence of
the interests of these children. These are all matters which should be properly
argued at trial, not pre-empted by premature disclosure.
LORD TOULSON: (dissenting)
79.
I respectfully disagree with the judgment of the majority. Despite the
arguments persuasively advanced by Mr Desmond Browne QC on behalf of PJS,
I
have concluded on reflection that the injunction originally granted by the
Court of Appeal on 22 January 2016 should not be reinstated. That injunction
provided that NGN (as I will refer to the respondent) should not publish any
information which might lead to
PJS’s
identification, or any of the information
referred to in a confidential schedule to the order, until trial of the action
or further order.
80.
To Lord Mance’s full summary of the facts I would add only that there
have been numerous twitter hashtags of a fairly obvious kind leading to
material identifying PJS
in connection with the injunction.
81.
I agree with Lord Mance that it was incorrect for the Court of Appeal to
say, as it did, that section 12 of the Human Rights Act (“HRA”) enhances the
weight which article 10 rights carry in the balancing exercise with the article
8 rights of PJS.
In its judgment dated 22 January 2016 the Court of Appeal set
out correctly the interplay between articles 8 and 10 (at para 30 and
following), and I doubt whether the court really intended to adopt a different
approach in April, but that is not a sufficient basis to re-interpret, or
overlook as immaterial, what it said on the later occasion. In consequence,
this court must review for itself the question whether the January injunction
should be set aside because of a change of circumstances.
82.
Although it does not affect the need for this court to form its own
judgment whether the January injunction should be set aside, I would not
subscribe to Lord Mance’s other three criticisms of the Court of Appeal; that
it wrongly referred to “limited public interest”; that it applied a quantitive
test to the level of disclosure which there had been, thereby overlooking the
invasiveness and distress which the proposed publication would entail; and that
its decision involved a failure to ensure that PJS’s
privacy rights were
practical and effective. As to public interest, the Court of Appeal referred to
what it had said on that subject in its earlier judgment without repeating it. In
its earlier judgment the court made it clear that it thought
very
little of the
public interest argument, for reasons which it fully explained. The seven
reasons which the court gave in the judgment under review, at para 47, for
setting aside the injunction were in no way affected by the NGN’s suggested
public interest in the publication; they were all to do with the consequences
of what had become public. As to applying a purely quantitive test, section
12(4) of the HRA required the court to have regard to the extent to which the
information embargoed from publication by the injunction was available to the
public; the court also considered expressly the impact on
PJS
and the children
of further disclosure in the light of events which had happened. The final
criticism, relating to a practical and effective remedy, requires fuller
discussion.
83.
It is not disputed that this court must approach the question whether
the injunction should remain in place on the basis that, on the present
information, PJS
is likely to succeed at the trial in his claim that
publication of his identity, and the other information in the confidential
schedule to the injunction, would be a breach of his article 8 rights. The
Court of Appeal so found in its January judgment, and it adhered to that
view
in the judgment under review (para 41). Mr Gavin Millar QC did not try to
persuade the court otherwise, although he made it clear that the Sun intends to
maintain its public interest defence at the trial. For present purposes, the
court must proceed on the basis that there is no public interest in the
publication of the material, however interesting it might be to some members of
the public. The fact that there is a public appetite, which the proposed
publication would feed, for information about the sex lives of celebrities does
not mean that its disclosure would be in the public interest. Celebrities are
entitled to the same respect for their private lives as anyone else, unless
disclosure would genuinely support the function of the press as a public
watchdog. All this is well established.
85.
Mr Browne concentrated his argument on the impact on PJS
and his spouse
becoming the subjects of a media storm, together with the consequences for
their children.
86.
The Court of Appeal rightly recognised that the information which the NGN
wants to publish is still private in the sense that it concerns intimate sexual
matters, which attract the protection of article 8, although much of the
confidentiality has been lost. In the world in which PJS
lives, knowledge of
the story must be commonplace and it is apparent from the evidence that the
circle of those who know is much wider. The story in its essential details has
been published in a major Scottish
newspaper,
it has been widely accessible on
websites and twitter, and anyone who seriously wanted to know
PJS’s
identity
will have had ways of finding it. Confidentiality in a meaningful sense can
survive a certain amount of leakage, and every case must be decided on its own
facts, but in this case I have reached a clear
view
that the story’s
confidentiality has become so porous that the idea of it still remaining secret
in a meaningful sense is illusory. Once it has become readily available to
anyone who wants to know it, it has lost the essence of confidentiality. The
court must live in the world as it is and not as it would like it to be. I
would echo Jackson LJ’s words that “[i]t is in my
view
inappropriate (some may
use a stronger term) to ban people from saying that which is common knowledge”.
In my judgment that is good sense and good law.
87.
Mr Browne submitted that even if the story has become widely known, an
injunction is still appropriate to protect PJS
from the impact of its being
reported in the media in a lurid fashion. The Court of Appeal weighed the “media
storm” argument both in its January judgment and in its recent judgment. In the
later judgment it saw less force in the point than in January. It said that the
process of excoriation which
PJS
fears has already been occurring and will
inevitably continue. It did not go as far as to accept the NGN’s argument that
PJS’s
article 8 rights had ceased to be engaged at all, because it recognised
that the proposed publication would be a further intrusion, but the critical
factor in the court’s decision whether to continue the injunction, as I read
its judgment, was what it saw as the unreality of trying to put a lid on the
story.
88.
It is well recognised that repeated publication of private (and
especially intimate) photos may properly be prevented by injunction, because
the original publication does not necessarily reduce the intrusion caused by
re-publication. In Douglas v
Hello! Ltd (No 3) [2006] QB 125, para 105,
the Court of Appeal explained that insofar as a photograph does more than
convey information, and intrudes on privacy by enabling the
viewer
to focus on
intimate personal detail, there will be a fresh intrusion of privacy when each
additional
viewer
sees the photograph, or even when one who has seen a previous
publication of the photograph is confronted by a fresh publication of it. The
court gave the example of a photograph taken with a telescopic lens of a film
star lying naked by a swimming pool. In the present case what is sought to be
restrained is the publication of facts of which there has already been
widespread disclosure. Once facts are widely known, the legal landscape
changes. In my
view
the court needs to be
very
cautious about granting an
injunction preventing publication of what is widely known, if it is not to lose
public respect for the law by giving the appearance of being out of touch with
reality.
90.
I do not underestimate the acute unpleasantness for PJS
of the story
being splashed, but I doubt
very
much in the long run whether it will be more
enduring than the unpleasantness of what has been happening and will inevitably
continue to happen. The story is not going to go away, injunction or no
injunction. It is a fact of life that stories about celebrities sometimes
acquire their own momentum. In relation to the children, the Court of Appeal
took account of their position both in its January judgment and in its recent
judgment. They are
very
young and there are
various
steps which their parents
can take to shield them from the immediate publicity. As the Court of Appeal
said, it is inevitable in the longer term that the children will learn about
these matters and their parents have no doubt already considered how they
propose to handle it.
91.
The case of Editions Plon v
France, to which Lord Mance has
referred, arose from the publication shortly after the death of President
Mitterand of a book by his doctor entitled “Le Grand Secret”. The French court
granted an application by the late president’s widow and children for an
interlocutory injunction to stop its distribution. The doctor was subsequently
prosecuted, fined and given a suspended prison sentence. Final judgment in the
civil proceedings was given nine months after the president’s death.
Substantial damages were awarded to his widow and children and the injunction
was made permanent. The Strasbourg court held that the temporary injunction had
been legitimate, because the publication had occurred so soon after the
president’s death when his family were grieving. It did not consider that the
permanent injunction satisfied the requirement of serving a pressing social
need, particularly having regard to the other remedies which had been ordered
and to the fact that the story was widely available on the internet. I
recognise that the facts were
very
different from those of the present case,
and that the content of the book raised matters of undoubted public interest,
but the case nevertheless shows that the court took a significantly different
approach to a permanent ban on the publication of information which was widely
available on the internet from its approach to a temporary ban for a specific
and limited purpose.
92.
Lord Mance has said that the effect of lifting the injunction will be
largely to undermine the purpose of any trial, which will be rendered
irrelevant. I would make two observations. First, while adequacy of damages as
a remedy is a reason to refuse an injunction, you cannot turn the argument on
its head and say that inadequacy of damages is a positive reason to grant an
otherwise inappropriate injunction. Secondly, I do not agree that the trial
will be rendered irrelevant. As to damages, I would not regard Eady J’s
decision in Mosley v
News
Group
Newspapers Ltd [2008] EWHC 1777 (QB),
[2008] EMLR 20, that exemplary damages cannot be awarded in an appropriate case
for breach of privacy, as the final word on the subject. Proportionality is
essential, but I would not rule out the possibility of the courts considering
such an award to be necessary and proportionate in order to deter flagrant
breaches of privacy and provide adequate protection for the person concerned.