Court of Appeal lifts “celebrity threesome” privacy ban

The Court of Appeal has granted an application by News Group Newspapers to set aside an interim injunction banning publication of a celebrity’s extra-marital activities.^[1] The issue to determine was whether the ban should be lifted as a result of recent coverage of the private information by the media outside England and Wales and on the internet.

Relevant legislation

Section 12 of the Human Rights Act (HRA) was of principal relevance to the application. Under that section:

• No injunction should be granted to restrain publication before trial unless the court is satisfied that the claimant is likely to establish at trial that publication should not be allowed (s. 12(3)).
• The court must have particular regard to the importance of freedom of expression and, where the proceedings relate to journalistic material, the extent to which (a) the material has become (or is about to become) available to the public or (b) it is, or would be, in the public interest for the material to be published (s. 12(4)(a)).

Facts

The names of the various protagonists were anonymised in the reports of the proceedings.

PJS is in the entertainment business and is married to YMA, who is also in the entertainment business. They have two young children.

In 2007 or 2008, PJS met AB. They had occasional sexual encounters, starting in 2009.

AB had a partner, CD. In 2011, PJS asked AB if CD was “up for a three-way”.  AB said that CD was.  The three then met for the now widely reported “celebrity threesome”.  After that encounter the sexual relationship between PJS and AB came to an end, but they remained friends.

That was until early January 2016, when AB and CD approached the Sun on Sunday, telling the editor about the sexual encounters with PJS.  The editor proposed to publish the story and notified PJS that he would do so.  PJS took the position that to publish would be both a breach of confidence and an invasion of privacy.

Proceedings

PJS issued proceedings against News Group Newspapers (NGN), alleging that the proposed publication would be a misuse of private information and a breach of confidence.  He also applied for an interim injunction to restrain the proposed publication.  Mr Justice Cranston refused that application.  PJS appealed and, at a hearing on 22 January 2016, the Court of Appeal allowed the appeal and issued an injunction restraining publication of the names of PJS, AB or CD, or details of their sexual encounters.

Notably, at the hearing in January, NGN did not place reliance on s. 12(4)(a)(i), i.e. that the material was available to the public and that an interim injunction should therefore be refused.

The injunction was effective until, on 6 April 2016, a US magazine published an account of PJS’s sexual activities, naming those involved. Other publications in the US, Canada and Scotland subsequently published similar articles.  As a result, details started to appear online.

The court noted that PJS’s solicitors had been assiduous in monitoring the internet and taking steps, wherever possible, to secure that offending information was removed, but that it was a “hopeless task”.

Various newspapers in England and Wales reported the contents of the redacted 22 January 2016 judgment, vigorously complaining that they were banned from naming the participants. The Mail Online claimed that 20% of the public already knew the identity of PJS.

Application to set aside the injunction

On 12 April 2016, NGN applied to the Court of Appeal to set aside the injunction previously granted, on the basis that the private information had entered the public domain and so the injunction served no useful purpose and was an unjustified interference with NGN’s right to freedom of expression.

In support of its application, NGN referred to copies of numerous articles and other material about this case, published both within and outside the jurisdiction. In opposition, PJS’s solicitors recounted the history of events since the grant of the injunction, describing the steps that had been taken to secure removal of online material identifying PJS.

NGN’s position

The court summarised NGN’s arguments as follows:

• There had been a material change of circumstances since the injunction was granted.
• As a result, the protected information was no longer either confidential or private.
• PJS’s right to privacy was no longer engaged.
• Some of the recent first-instance decisions on privacy interim injunctions did not give proper effect to section 12 of the HRA.
• The current litigation had triggered a public debate and the identification of PJS and YMA would contribute to that debate.
• Any article that the Sun on Sunday might publish would not be a dramatic revelation and so would be less harmful to PJS, YMA and their family.
• PJS could no longer establish that he was likely to obtain a final injunction at trial.

PJS’s position

The court summarised PJS’s arguments as follows:

• The media had whipped up the current debate and encouraged their readers to search online for the private information.
• The media were putting pressure on the court to set aside the injunction by a series of articles ridiculing the 22 January 2016 judgment.
• The court should not succumb to such pressures, but should apply the statutory test.
• Breach of confidentiality and misuse of private information are separate torts.
• Not all secrecy attaching to PJS’s sexual activities had been lost.
• No mainstream publication in this jurisdiction had published the story.
• PJS, YMA and their children have privacy rights that require protection.
• Re-publication of private information which is already in the public domain is still tortious and a breach of the right to privacy.

Court of Appeal’s analysis

The question to be determined was whether there had been a change of circumstances such as to warrant setting aside the injunction, despite the limited public interest in the story. This required a fresh consideration of sections 12(3) and 12(4)(a) of the HRA against the backdrop of the now widely available material.

Interestingly, the court gave short shrift to the notion that the present case had stimulated a public debate about privacy injunctions, and that NGN should be able to participate fully in that debate by identifying PJS and publishing the private information.

The court noted that the assessment required by section 12(4)(a) involves a fact-sensitive assessment as to (a) what has occurred, (b) what will occur before trial and (c) what the result will be at trial.

As a starting point, it was necessary to consider separately PJS’s claims based on (a) confidentiality and (b) misuse of private information.

Claims for confidentiality generally fail once information has passed into the public domain. The law gives greater protection, however, to privacy rights, although the extent of that enhanced protection is less clear.

The court held that a claim for misuse of private information can survive when information is in the public domain, and it depends on how widely known the relevant facts are.  In many situations, such as in this instance, the claim is diminished because the information published by the defendant is already known to many readers.  The publication is still an invasion of privacy and hurtful, but is not as egregious as it would otherwise be.  That does not deprive a claimant of his claim for damages, but it weakens his claim for an injunction.

Interestingly, the court noted that the story that NGN proposed to publish was still likely to be a breach of PJS’s right to privacy, but what had changed was the weight which that right has when balanced against NGN’s right to freedom of expression. The fact that material was widely known was also relevant to the court’s discretion.

In considering the effect of a media “campaign” against a particular injunction, the court held, citing CTB v News Group [2011] EWHC 1326 (QB), that it should not set aside an injunction merely because it has met widespread disobedience or defiance, as that would be contrary to the rule of law.

It noted the important difference, however, between succumbing to disobedience or defiance, on the one hand, and accepting that there has been extensive dissemination of private material, on the other.

The court recognised that the internet and social media “have a life of their own”, and that the English courts have little control over what foreign media may publish.

The court acknowledged that people who are interested in the sex lives of celebrities will by now have read press reports of this case and would have had no difficulty in finding out the identities of those involved. It was submitted on behalf of PJS, however, that if the injunction were lifted, others with less interest in such topics would become aware of PJS’s conduct.

Court of Appeal’s decision

In summary, the court found that it was still likely that PJS would be able to establish a breach of privacy at trial, but, despite the limited public interest in the proposed story, PJS was no longer likely to obtain a permanent injunction (only damages instead), for the following reasons:

• Knowledge of the relevant matters was by then so widespread that confidentiality had probably been lost.
• Much of the harm that the injunction was intended to prevent had already occurred.
• The material that NGN wished to publish was still private information, and so PJS’s right to privacy was engaged. There were still many people who did not know about PJS’s sex life, and NGN’s planned publication would be a further unwelcome intrusion.  On the other hand, it would not be a shock revelation.
• If the interim injunction stood, newspaper articles would continue to appear re-cycling the contents of the redacted judgment and calling on PJS to identify himself. Websites discussing the story would continue to pop up.
• NGN was entitled to publish articles criticising people in the public eye, and there is a limit to how far the courts can protect individuals against the consequences of their own actions.
• The weight attaching to PJS’s right to privacy had been reduced, and it could now be said that at trial PJS’s rights were likely to prevail over NGN’s, so as to warrant a permanent injunction.
• The court should not make orders that are ineffective, and the court should not ban people from stating information that is common knowledge.

Finally, as regards YMA and the children, the court held that the interests of other family members, in particular children, are a significant consideration, but they cannot be a trump card. Whether or not the court granted an injunction, it was inevitable that the two children would in due course learn about these matters.

So the court held that the application to discharge the injunction was allowed, and that it must be set aside.

Appeal to the Supreme Court

At the time of writing, the Supreme Court has heard PJS’s appeal and is considering its decision.

Comment

The right to privacy is enshrined in law in this country at the highest level. That right is not, however, being adequately protected by the law as it currently stands.

Information is transferred around the world and available to billions of people at the touch of a button. For the most part, that is a good thing and the free transfer of information has been the defining change in the world over the past 15 to 20 years.  But there is still much information that remains private, and its dissemination beyond those to whom it is private is not just hurtful and embarrassing, but also potentially destructive and, in extreme cases, life-changing.

It cannot be right that the disclosure of such information to the world at large, often simply for the sake of titillation and a cheap laugh, trumps the privacy of the individual. But given a globalised world where much of what is written online in blogs or social media is done without a moment’s thought for the rule of law, an essential human right is now extremely difficult to protect.

Changes should be made to redress this now distorted balance. One solution might be to make damages for breach of privacy claims high enough for publishers to think twice before publishing.  Although the damages awards for phone-hacking cases – in one case over £260,000 – show that there may be a shift in that direction, the highest award to date for a one-off breach is just £60,000.  No-one can reasonably argue that such a low sum can have come close to restoring the damage done to Max Mosely after the life-changing stories published by The Sun.

But to a great extent, damages in those circumstances are merely shutting the stable door once the horse has bolted. Since the internet is still to a large extent the Wild West, the solution may lie in giving additional teeth to the law to make individuals (not third-party retellers) abide by the privacy and confidences that should exist when individuals engage in the most private of activities with each other.  It is AB and CD who have sought to renege on the confidences owed to PJS.  And if the right to privacy is to continue to be regarded as one of the most fundamental human rights, the law must operate to be more potent than the temptation of tabloid cash or the allure of fifteen minutes of fame.

In the meantime, the injunction regime needs to be recalibrated so that it does not encourage widespread coverage and speculation by the media, which in turn creates hype and prurient interest. Anonymised injunctions are not working properly to protect individuals’ privacy, and the return of something akin to the so-called “super injunction” might be the most viable solution.

Tom Iverson

25 April 2016

 

[1] PJS v News Group Newspapers Ltd [2016] EWCA Civ 393 (18 April 2016).