Sex, lies, and the public interest

This has been a turbulent few weeks in the courts, the press, and politics. 'Do we have the rule of law in this country or the rule of the press?' That quote from Desmond Browne QC in the case of PJS v News Group Newspapers Ltd [2016] EWCA Civ 393 nicely sums things up.

In a display of astonishing double standards (even for the press), we saw the newspapers clamouring loudly for the public's 'right to know' concerning a celebrity sex matter and at the
same time telling us they were reformed, post-Leveson, and didn't do sex stories about politicians any more.

How can these two cases possibly be reconciled? On the one hand, a famous but anonymous married couple were at the centre of an injunction to stop the press from publishing a story about one of the parties engaging in a threesome with another couple. According to the tabloids, it was of the utmost importance that the public should be told about this story (and the identity of the parties), and News Group Newspapers went all the way to the Supreme Court to argue that. It was unfair, they argued,
for the rich and famous to use the courts to hide their affairs.

When however, it emerged through blogs, Private Eye, and the BBC that the same press had been sitting on a story about the culture secretary and his relationship with a dominatrix sex worker, widely known in political circles for some time, the press answered that it could no longer print such a story - the minister was a single man - and this showed how the press was reformed and was subject to a stringent new system of regulation.

Funny that, because the same culture secretary had been (without explanation) holding back implementation of a key measure required to bring in the Leveson reforms (section 40 of the Crime and Courts Act 2013), which had been passed by parliament with all parties' support. In addition, the culture minister is responsible for bringing in the second part of Leveson, which can only take place after the end of the criminal trials. Most of the press wants neither of these.The Leveson inquiry was split into two
parts in order to avoid a clash with the police investigation into phone hacking and possible trials. The first part, it will be remembered, examined the culture, practice, and ethics of the press. The second part was supposed to inquire specifically into phone hacking and the relationship between the press and the police.

Celebrity injunction

Many people know who PJS is; that is not the point. The current Supreme Court appeal (on which judgment is awaited) concerns whether the publication overseas of the identity of PJS and details of his sexual encounters has resulted in the protected information no longer being confidential or private, such that the injunction preventing publication in this jurisdiction should be set aside.

In these privacy injunction applications, the court must balance the claimant's right to privacy (article 8) with the defendant's article 10 rights (freedom of expression). The Court of Appeal had in an earlier judgment made the following findings: 'The picture which emerges from the publicity material is not one of total marital fidelity, but rather a picture of a couple who are in a long-term, loving, and committed relationship. On the present evidence, that image is an accurate one.

'If the defendant publishes the proposed story, this will not set the record straight in any material respect. It will simply reveal that one feature of the claimant's and YMA's long-term relationship is that the claimant is allowed to have occasional sexual encounters with others. That would provide supplementary information, but it would not correct a false image.' The Court of Appeal held that stories that merely satisfy readers' curiosity concerning a public figure's private life do not serve the public interest. The court considered that the proposed story fell into this category. It expressly rejected the newspaper defendant's contention that the proposed publication would advance the public debate or provide support for competing opinions.

The court confirmed in the earlier judgment that the claimant's article 8 right to privacy outweighed the defendant's article 10 rights. The privacy rights of the claimant's children were also held to be a relevant factor in the balancing exercise. Accordingly, the court concluded that the claimant was likely to establish at trial that the publication should not be allowed, meaning that it satisfied the test for granting interim relief.

The Court of Appeal was later persuaded by News Group Newspapers to discharge the injunction (largely because of the widespread publication outside the jurisdiction), hence the appeal to the Supreme Court.

Desmond Browne QC told the Supreme Court that discharging the injunction would have 'devastating consequences' for the celebrity and his children and lead to a 'storm of harassment'. The purpose of the injunction was not just to protect the secrecy of the information but also to protect the claimant and his family from intrusion and harassment. Browne said that the English media had embarked on a campaign to ridicule the grant of the injunction with the twin aims of encouraging their readers to find the prohibited information online and to put pressure on the court to lift the injunction.

Public interest angle

Back to the culture secretary. So, a tabloid press which goes all the way to the Supreme Court to be able to report on the sex lives of a celebrity couple now claims that it did not report on the culture secretary's relationship with a sex worker because that would be a breach of his privacy as a single man and was just not a story worth publishing.

That is an astounding contention given the obvious public interest angle in that story. At the time of the relationship, Mr Whittingdale chaired the culture, media, and sports select committee. It is hard to imagine a more high-profile committee given that its brief was to investigate libel and privacy issues, including the News International phone-hacking scandal. As chair, he had even taken the rarely used step of issuing a summons to compel the Murdochs to attend before the committee.

Yet the press argued that he was not well-known enough to justify running the story. This did not seem to bother the press when it came to publishing intimate details of the private life of Lord Sewel not so very long ago.

Public interest is important in this context because it can trump the right to privacy, by tipping the legal balance in favour of the article 10 rights which would justify the press publishing a story about a minister's private life.

Moreover, the editors' code published by the Independent Press Standards Organisation (IPSO) also provides that 'everyone is entitled to respect for his or her private and family life'. It goes on to say that there may be exceptions where they can be demonstrated to be in the public interest.
This includes detecting or exposing serious impropriety and protecting the public from being misled. It also applies to disclosing a person's failure or likely failure to comply with any obligation to which they are subject (such as implementing the Leveson proposals?).

It is not difficult to see how editors could properly argue that disclosure of Whittingdale's private life was in the public interest or would have contributed to a matter of public debate, given the potential for conflict of interest in the exercise of his ministerial powers and duties. It has been argued the potential story was a 'sword of Damocles' hanging over the culture secretary.

In addition, there is huge debate in the press about many issues surrounding media and privacy laws, as well as the future of the BBC: all matters relevant to the culture secretary's role. It seems the print media has again opted to dwell on the details of the sex lives of celebrities, but chosen to ignore a story with real public interest issues.Of course, once the story had been brought to the public attention, the tabloids became interested and regarded it as a proper subject for many more stories. The culture secretary has been reported to the parliamentary standards watchdog concerning failure to disclose a trip to the 2013 MTV Awards with the same sex worker.
If he was not very well-known at the time of the relationship, he certainly is now.

The Supreme Court has yet to publish its judgment on whether the PJS injunction
should stand.

Steven Heffer is a partner and head of the media and privacy team at Collyer Bristow @Collyer_Bristow www.collyerbristow.com