UK Supreme Court restores injunction in "celebrity threesome" case
Media outlets in England & Wales remain barred from publishing the identities of the parties involved in the "celebrity threesome" case, after the UK Supreme Court today restored the interim injunction sought by the claimant, referred to as PJS.
In doing so the court ruled, by a four to one majority, that neither the right to privacy and family life under article 8 of the European Convention on Human Rights, nor the right to freedom of information under article 10, has primacy over the other; rather there had to be an "intense focus" on the comparative rights being claimed in the individual case.
Further, there was not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involved infidelity or more than one person at the same time, however famous the individual or individuals concerned.
In the present case, despite the widespread availability of the information in the public domain, the proposed publication constituted a serious breach of PJS's and his family’s privacy rights, with no countervailing public interest on the present evidence, and there was likely to be granted a permanent injunction notwithstanding the internet and social media publication.
PJS and his spouse YMA, "well known individuals in the entertainment business", had two young children. Between 2009 and 2011 PJS had a sexual relationship with a woman AB, and on one occasion with her and another person. In January 2016 the Sun on Sunday proposed to publish AB's account of the relationship. PJS claimed this would breach his rights to privacy and confidentiality, protected by article 8. He obtained an interim injunction, the Court of Appeal holding that the conditions in s 12 of the Human Rights Act, which provides protections for journalistic freedom, had been satisfied.
AB's account was then published in the United States, Canada and Scotland. Although online publication was blocked to internet users in England & Wales, details circulated on other websites and social media. The Court of Appeal was persuaded to discharge its interim injunction as a permanent injunction was unlikely to be granted at trial. The Supreme Court restored it pending the hearing of PJS's appeal.
Lord Mance, supported by Lord Neuberger, Lady Hale and Lord Reed, said the Court of Appeal had erred in stating that s 12 enhanced the weight to be given to article 10 rights, when the case law established that neither article 8 nor article 10 had preference over the other. It also referred to a "limited public interest" in the story, whereas there was not, on its own, any public interest in the legal sense in such disclosures.
Distinguishing claims for breach of privacy and for breach of confidence, the court held that while the circulation of the information might well mean that PJS would face difficulties in obtaining a permanent injunction based on confidentiality, as respects the privacy claim the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continued to be highly relevant.
The question was whether the injunction could still serve a useful purpose. There was a "qualitative difference in intrusiveness and distress" between the disclosures on the internet which had occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story. Publication in this form was contrary to the interests of PJS’s children and in breach of the requirement to show an exceptional public interest for the intrusion set out in the Editors’ Code of Practice, to which the publishers had subscribed.
Rights had to be practical and effective, Lord Mance added. The grant of an injunction was the only remedy of any value to PJS and his family, for whom the invasion of privacy occasioned by "the media storm which discharge of the injunction would unleash", rather than any award of damages, was likely to be the real concern. Considering the central issue, whether the trial judge would be likely to grant a permanent injunction, the majority concluded that such a grant was likely.
Lord Toulson dissented on the basis that where the information was widely available, the form of the publication should not make a significant difference: the purpose of s 12(3) was to discourage the granting of an injunction to prevent publication of information which was already widely known.
"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", he stated. "The story is not going to go away, injunction or no injunction."