PJS v News Group Newspapers Ltd

JurisdictionEngland & Wales
JudgeLord Neuberger,Lord Reed,Lord Toulson,Lord Mance,Lady Hale
Judgment Date19 May 2016
Neutral Citation[2016] UKSC 26
Date19 May 2016
CourtSupreme Court
PJS
(Appellant)
and
News Group Newspapers Ltd
(Respondent)

[2016] UKSC 26

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Mance

Lord Reed

Lord Toulson

THE SUPREME COURT

Easter Term

On appeal from: [2016] EWCA Civ 393

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.

2

Some may still question whether the case merits the weight of legal attention which it has received. But the law is there to protect the legitimate interests of those whose conduct may appear unappealing, as well as of children with no responsibility for such conduct. The Supreme Court must in any event apply the law as it has been laid down by Parliament, paying due regard to the case law which Parliament has required it to take account. The Court must do so in the present case in relation to what, on present evidence, appears to be a clearly unjustified proposed further invasion of the relevant privacy interests — one which is unsupported by any countervailing public interest in a legal sense, however absorbing it might be to members of the public interested in stories about others' private sexual encounters. At trial, it will be open to the respondents to seek to show some genuine public interest in publication. But none has been shown to date, and, pending trial, the point of any trial should not be prejudged or rendered irrelevant by unrestricted disclosure.

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.

9

The Court of Appeal noted that the appellant's solicitors have been assiduous in monitoring the internet and taking steps, wherever possible, to secure removal of offending information from URLs and web pages, but concluded that this was a hopeless task: the same information continued to reappear in new places, and tweets and other forms of social networking also ensured its free circulation. On the other hand, the evidence of the appellant's solicitor, Mr Tait, is that social media are responding to objections of invasion of privacy, that a material number of links has been removed, disabled or become inactive and that Mr Tait is confident that, with the continuation of the injunction, this process will continue and it will become increasingly difficult to identify the appellant online. In the light of the Court of Appeal's assessment and its own review of the material available, the Supreme Court must however assume that a significant body of internet material identifying those involved by name and reproducing details from the original American publication about their alleged activities still exists and will continue to do so for the foreseeable future.

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
11

The appeal falls to be determined by reference to the Human Rights Act 1998 (" HRA") and the ECHR rights scheduled to it. Those rights include articles 8 and 10, reading:

"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...

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