Sex, please – we're British

The public gets what the public wants. The application by The Sun on Sunday to have the PJS privacy injunction discharged was granted by the Court of Appeal last week and now we can all lawfully revel in the ins and outs of the private sexual life of a celebrity engaged in a threesome.

But, of course, we can't, because the case is going higher up the echelons of the judiciary, on appeal to the Supreme Court, and the injunction has been temporarily extended until after that.

If this case is indeed about a threesome, it is about:

• How national borders can mean nought when it comes to publications on the internet;

• A potentially fatal blow landed on a major privacy tool available for the people versus the press; and

• The public's use of social media, and certain elements of the press, showing a disregard for the letter and the spirit of the law and sneering at the learned decisions of the courts of England and Wales.

The internet knows no geographical boundaries, and so, like the spores of a genetically modified (GM) crop wafting on the wind to a nearby GM-free zone, the injuncted information has blown over boundaries, from the US, Scotland, Ireland, and elsewhere, untroubled by the reach of the English court's powers. The media sensed a change in the air and was only too happy to harness the interest of the public (if not the public interest), where salacious tales of bedroom romps can generate massive sales. Free speech? Very valuable speech, more like.

But is the discharge of this injunction really what the public wanted? Can our clients now continue to trust that decisions of our courts will be respected? Or, when the rule of law can be so easily overturned by collective public pressure, galvanised and championed by the media, and influenced from outside our borders, are we happy that this is what the public gets?

If this does herald a fatal blow to privacy injunctions, then we must find a way to dis-incentivise the press from rooting through our privates with impunity. Those whose privacy has been invaded must stand up for themselves, stand up against the media, and pursue their cases, allowing the courts to decide, ultimately, if the exposure was lawful. And if it was not, then the courts need real power to be able to award substantial damage, because the wilder excesses of the press will only be curbed where newspapers are hit hard where it hurts, in their pockets with punitive damages.

The Courts and Crime Act 2013 already provides a mechanism by which to award exemplary damages against publishers who are not members of an approved regulator. The provisions are as yet untested, but the all-out attack on privacy injunctions that has been levied as a result of this case is the perfect opportunity for our courts to robustly use these new provisions to punish after the fact, but also to give pause for thought to the media in their pre-publication stage, when weighing up, as they assert that they do, their entirely valid right to free speech, against the equally valid right to respect for private life.

Amber Melville-Brown is head of media and reputation at Withers

@WithersLLP

www.withersworldwide.com