Supreme Court allows PJS appeal in celebrity injunction case
Court of Appeal erred in law over balancing human rights, says Lord Mance
An interim injunction preventing details of a celebrity threesome from being published will remain in place, the Supreme Court has ruled.
In recent weeks, publications in Scotland and the US have revealed details of the case involving individuals known in court as 'PJS', 'YMA', 'AB', and 'CD'.
Last month, the Court of Appeal held that the injunction prohibiting News Group Newspapers Ltd (NGN) from publishing the story should be lifted as leaks abroad had 'reduced the likelihood of the claimant obtaining a permanent injunction when the case comes to trial'.
However, the UK's highest court decided that by a majority of four to one that the injunction should be maintained after the Court of Appeal erred in its application of the law.
In giving the lead judgment, Lord Mance said the court was obliged to reconsider discharging the injunction as Lord Justice Jackson had misdirected himself when lifting the injunction he had previously granted in January.
Lord Neuberger, who gave a supporting judgment, said: 'Having rightly said that it was necessary to balance PJS's right to respect for his private and family life against NGN's right to freedom of his expression, [Jackson LJ] said that section 12 of the Human Rights Act "enhances the weight" to be given to the latter factor. However, that is not right.
'As Lord Steyn made clear in In re S (A Child)  1 AC 593, para 17, each right has equal potential force in principle, and the question is which way the balance falls in the light of the specific facts and considerations in a particular case.'
Lord Mance also rejected Jackson LJ's assertion that there was 'limited public interest' in the story, however famous those involved were.
'Criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense,' he said.
'It is beside the point that the appellant and his partner are in other contexts subjects of public and media attention - factors without which the issue would hardly arise or come to court.'
Lord Neuberger added that because Jackson LJ's finding in January that there was no public interest in the story being published 'has unsurprisingly not been appealed, it must be accepted, at least until trial.'
Lord Mance also reasoned that the Court of Appeal failed to give 'due weight to the qualitative difference in intrusiveness and distress' that would be felt by PJS and their family in the event of unrestricted publication.
The Supreme Court concluded that, in light of the present evidence, a permanent injunction would be likely to be granted at a future trial.
However, Lord Toulson, dissenting, said the injunction should have been upheld due to the information being widely available.
'Once facts are widely known, the legal landscape changes. In my view the court needs to be very cautious about granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law by giving the appearance of being out of touch with reality.'
Lawyers have been quick to dissect the Supreme Court's judgment to highlight the likely implications for future celebrity privacy injunctions.
Nathan Capone, an associate in the dispute resolution team at Fieldfisher said a discontinuation of the injunction would have been the 'death knell' for such injunctions.
'The judgment is a robust affirmation of the importance of applying the law,' he said 'Responding to press criticism of the injunction, the Supreme Court said that even if it can be said that the law is an ass, if that is the price of applying the law, it is one which must be paid.
'The Supreme Court has acknowledged that the world of social media and the internet is effectively uncontrollable and the courts need to be ready to change their approach as a consequence.
'However, in this case the legal position as to PJS's privacy rights was clear and electronic developments as they stand today should not affect that position.'
Kate Macmillan, a partner in the media and privacy team at Collyer Bristow, added that the case had raised 'quasi-constitutional issues' with likely far-reaching consequences.
'Those who value privacy will be pleased that that the Supreme Court has stepped in to make clear that the nature of the modern tort of privacy is to protect against intrusion and harassment, as well as to preserve secrecy when appropriate to do so,' she said.
'A cruel and destructive media frenzy would have otherwise ensued. PJS, PJS's spouse, and the couple's children would have suffered unnecessarily.
'The disturbing aspect throughout the case has been the role the media has played in making the information "accessible".'
Macmillan added that two important questions needed to be considered: 'First, do you want online bloggers and the media to determine what happens to us? Second, do you feel you can rely upon the legislature to take everyone's views into account and implement changes that accurately reflect those views?
'This is unlikely to be the last time that the media tests the limit on these issues.'
Meanwhile, Kim Waite, a senior associate in RPC's media team, explained that arguing for one's children to be protected from embarrassment remained a 'highly relevant factor' in whether to grant a privacy injunction.
'Other celebrities with children may well seek to use this argument in future whether or not they are seeking to prevent the publication of stories about genuinely private matters not in the public interest,' she said.
'It seems likely that privacy injunctions in the future may focus on the perceived intrusion into a person's private and family life that the publication of the story may have, and less on whether the information can genuinely be said to be private.'
However, Michael Patrick, a member of Farrer & Co's reputation management practice, suggested celebrities would be wary about taking injunctions out in the future.
'The Supreme Court has flexed its muscles by making clear that the English legal system won't be bullied by the media,' he said.
'While there are many who know PJS's identity as a result of what has been published on the internet and in the US, there are many who don't. Despite the end result, it will be a brave celebrity that seeks privacy injunctions in the future.'