The Supreme Court decision in PJS v News Group Newspapers: what does it mean for the future of privacy injunctions?

The Supreme Court has today resisted significant media, internet and political pressure to uphold an anonymous privacy injunction obtained by a well-known celebrity.

1. What is the case about?

The claimant, PJS, is a well-known figure in the entertainment industry who is married to YMA: also a well-known individual in the same business. The editor of the Sun on Sunday newspaper had informed the claimant of the intention to publish an article reporting on the claimant’s extra-marital sexual activities with two other individuals. The claimant took the view that publication of the story would be a breach of his privacy and commenced proceedings against News Group Newspapers (NGN) to prevent its publication.

PJS (whose identity is already widely known) took the case up to the highest court in England and Wales even though the effectiveness of the privacy injunction obtained from the Court of Appeal in January 2016 had already been substantially undermined by the publication of the claimant’s and the claimant’s partner’s identity in many countries outside of England and Wales.

The public debate that has accompanied this case has arguably been a more interesting story than the one that PJS tried to prevent in the first place and has raised serious questions as to how anonymous privacy injunctions can be enforced in today’s social media dominated society.

2. How did the Court of Appeal determine the issues?

In his leading judgment in the Court of Appeal in April, Lord Justice Jackson said that “the court should not make orders which are ineffective” and it would be “inappropriate…for the court to ban people from saying that which is common knowledge.”

On this basis, and for various other reasons, the Court of Appeal concluded that the claimant was not ‘likely’ to obtain a final injunction at trial. The Court of Appeal therefore lifted the injunction that it had previously granted.

There was little analysis in the Court of Appeal’s judgment of whether an injunction would in fact protect the claimant from further intrusion or whether there were other steps that the claimant could take to prevent such intrusion, such as by targeting search engines to prevent dissemination of private material upon a search of his name. Indeed, the Supreme Court later recognised that the claimant had already had some success in having some of the coverage geo-blocked. There was also little analysis as to the extent that news coverage of the lifting of the injunction would cause further intrusion to the celebrity couple and their children.

3. What was the key issue for the Supreme Court to determine?

Unlike most privacy injunction cases, the Supreme Court did not have to determine whether the injunction should have been granted in the first place; it was accepted by both parties in the Supreme Court that the Court of Appeal, in overturning the first instance decision of the High Court in January 2016, had correctly balanced the claimant’s rights to privacy as against NGN’s rights to freedom of expression, and that any public interest arguments in favour of publication did not outweigh the privacy rights of the claimant and his family.

Rather, the issue the Supreme Court had to decide (much like in the case relating to a famous Premier League footballer back in 2011) was whether the identity of the claimant and his high profile partner should remain anonymous in circumstances where it was already widely known in England, thanks to the publication of the story in the US and on multiple websites around the world.

4. What was the Supreme Court’s reasoning for upholding the injunction?

Their Lordships’ dilemma was clear: do they agree with the Court of Appeal and admit defeat to the media and the internet? Or do they allow the claimant to protect what little privacy there was left to protect in order to avoid the precedent that anonymity orders can be blown apart by foreign publications and social media? In the end, they made a very brave decision, and one that will be widely ridiculed in the media.

In reaching its decision, their Lordships found that the Court of Appeal had erred in a number of ways, including that:

• it was wrong to direct itself that Section 12 of the Human Rights Act 1998 enhanced the weight to be given to Article 10 rights (freedom of expression) in the balancing exercise as against Article 8 (respect for private and family life), when case law had already established that neither Article 8 nor Article 10 has preference over the other;
• it was wrong to refer to a “limited public interest” in the story, finding that there is no public interest at all in the disclosure of “private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved”; and
• it did not have sufficient regard to the “media storm” that would follow publication of the celebrity couple’s identity if the injunction was lifted.

Their Lordships clearly felt that all was not lost for the claimant and that the claimant would still be likely to obtain an injunction at trial to prevent further intrusion, notwithstanding the widespread coverage to date.

5. What does this mean for the future of privacy injunctions?

It is unlikely that the Supreme Court’s decision will lead to an increase in future privacy injunctions, despite such claims from claimant lawyers. As numerous celebrity claimants have discovered, there is little point in trying to remain anonymous if the claimant is a newsworthy individual.

Even if an individual is minded to seek to obtain an anonymous privacy injunction against the press, the number of individuals within the ‘confidentiality club’ who need to know the identity of the claimant is significant and includes the parties’ legal teams, key personnel in the media who have the story, the Court and court staff and any individuals the claimant chooses to tell. It only takes one of these ‘insiders’ to leak the information for a rumour to begin circulating. It is for this reason that we have not seen a significant number of privacy injunctions against the press since 2011 and there are unlikely to be an increasing number in years to come.

However, there is a big difference between, on the one hand, the identity of the claimant and the mere fact of, say, an extra-marital relationship, and, on the other hand, the intimate details of that relationship, which despite being of interest to some, are unlikely to be necessary in order for a public interest story to be articulated. We may still see the occasional brave celebrity attempting to obtain an injunction, not to conceal the existence of a relationship, but to prevent details from being published to save further embarrassment and intrusion. It may well be that such claimants will have to be open about seeking such injunction and not attempt to retain the cloak of anonymity. This approach may subject them to press ridicule in the short term, but may mitigate some of the damage going forward.