Criminal update
Administration of justice update:
PJS: the death knell for kiss and tell?
As it appears that reports of the death of the privacy injunction were greatly exaggerated, Eloise Spensley analyses whether PJS could spell the end of the kiss and tell.
About the author
Eloise Spensley is a CILEx member working in the editorial and regulatory media team at Foot Anstey LLP, Exeter.
T he recent media storm surrounding the now notorious case of PJS v News Group Newspapers Ltd [2016] UKSC 26 has dominated the front pages of the tabloids for the past few months. With each passing day, further salacious details emerged in the British press about the sordid affair between PJS, AB and CD. Although the newspapers, bound by the terms of the injunction, stopped short of revealing the identities of those concerned, this information was published in easily accessible international publications as well as across social media platforms and the wider internet.
These high-pro file proceedings are the first of their kind to reach the Court of Appeal since 2011, and the first-ever to reach the Supreme Court. The final judgment, which was handed down on 19 May 2016, sparked fresh debate concerning privacy injunctions and raised the question of whether this case marks the end of kiss and tell in the modern digital age?
Unless you have been orbiting the Earth with current European Space Agency astronaut Tim Peake for the past few months, you will probably be aware of the background to this case. PJS, a well-known celebrity, is married to YMA, who is also well-known in the entertainment business. Sometime after 15 December 2011, PJS engaged in extra-marital sexual activity with AB and CD.
In early 2016, AB and CD approached the editor of the Sun on Sunday with the intention of selling their story. The newspaper sought comment from PJS as to the allegations that had been made, who immediately instructed lawyers to take action.
Lawyers for PJS issued proceedings and made an application with the high court for an interim injunction preventing the identification of the parties involved, pending a full trial. It was argued that the proposed publication would be a breach of confidence and an invasion of privacy, on the basis that the story was not relevant to any public debate and that since the relationship between PJS and YMA was an open one, the encounters between PJS, AB and CD were within the mutually agreed bounds of their relationship.
In January 2016, Cranston J, the judge at first instance, refused the application on the basis that the article was in the public interest because it would serve to correct a false impression presented by the couple to the public. It was acknowledged that the privacy rights of the couple’s children were important; however, Cranston J stated that they did not operate as a trump card, and so could not be the sole basis on which to grant injunctive relief.
PJS appealed immediately. The Court of Appeal, led by Lord Justice Jackson, granted the interim injunction as requested ([ 2016] EWCA Civ 100).
In the judgment, Jackson LJ identified what the court perceived as two key failings in Cranston J’s earlier judgment, as follows:
- Although the article 8 rights (right to respect for private and family life) of the couple’s children under the European Convention on Human Rights (‘ the convention’ ) had been identified as a relevant factor, insufficient weight had been attached to their significance.
- In addition, the court was satisfied that PJS and YMA were a committed, albeit non-monogamous , couple and this was not simply an image that they tried to project to the public. As such, publication could not be in the public interest as there was no false image to correct.
On this basis, the Court of Appeal felt that there were suÿcient grounds to review the conclusion of the balancing exercise between article 8 and article 10 (right to freedom of expression) of the convention carried out by the first instance judge. The court adopted the position taken by Strasbourg in Couderc and Hachette Filipacchi Associés v France App No 40454/07; [2015] ECHR 992. It held that articles which merely satisfy readers’ curiosity concerning the private lives of public figures, so-called ‘kiss-and-tell ’ stories, do not serve the public interest, and therefore in this case the article 8 privacy rights of PJS, YMA and their children outweighed the freedom of expression consideration to be made under article 10.
In addition, the Court of Appeal considered Human Rights Act 1998 s12(3), as required in situations where article 10 is engaged, and determined that PJS was likely to establish that a permanent injunction would be imposed at trial; the court dismissed the argument that the proposed publication would provide material for the ongoing public debate.
The interim injunction remained in place for 11 weeks until publications based in America, Canada and even Scotland began to publish the identities of PJS and YMA in print which, in turn, despite the ‘assiduous’ efforts of PJS’ lawyers, led to extensive publication of the information across social media and the wider internet ([ 2016] EWCA Civ 393, para 16 (see below)) .
These publications served only to aggravate the English press further, which then sought to challenge the injunction on the basis that the restricted information had entered the public domain and was so widely known that PJS would not be able to obtain a permanent injunction at trial. The front-page headline of the Daily Mail at the time: ‘Why the law is an ass!’, neatly summed up the tabloid media’s mood.*
As a result, News Group Newspapers applied for the Court of Appeal decision to be set aside. At a second hearing in April 2016, Jackson LJ confirmed that although the injunction had been properly imposed in January 2016, circumstances had now evolved such that injunctive relief was no longer appropriate ([ 2016] EWCA Civ 393). In his reasoning, he said that it was ‘inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge’ (para 47(vii)) .
A subsequent appeal was heard by the Supreme Court in late April 2016, with the decision handed down in May. In a 4 to 1 majority ruling, it was decided to restore the interim injunction preventing the identification of PJS and YMA pending the conclusion of a trial.
In his reasoning, Lord Mance set out six key factors supporting the decision to restore the interim injunction:
- The Court of Appeal had wrongly proceeded on the basis that the article 10 of the convention should be given greater weight than the article 8 right to a private life. It is well-established that neither right should take precedence over the other.
- The Court of Appeal had been wrong to conclude that there was ‘limited’ public interest in revealing the identity of PJS (para 21). There is no public interest in the disclosure of private sexual encounters.
- There is a distinction between claims for breach of privacy and those for breach of confidence. The former is still capable of subsisting even after the restricted information has been widely disseminated, whereas the latter is not.
- An award of damages for breach of privacy would not achieve the same end as a permanent injunction, and to lift the interim injunction at this stage would have rendered a trial for a permanent injunction pointless.
- The public interest exceptions in the Independent Press Standards Organisation’s Editors’ Code of Practice concerning children are of relevance in a legal context, and the requirement to show an exceptional public interest outweighing the privacy rights of the children concerned had not been established.
- Based on the evidence, PJS was likely to obtain a permanent injunction at trial, and therefore the interim injunction should remain in place pending those proceedings.
Only Lord Toulson disagreed on the basis that where such information is widely available, the form of publication should not make a significant difference. He stated that ‘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’ (para 88).
Through its decision in PJS, the Supreme Court has reafirmed the efficacy of privacy injunctions in the modern age. Despite wide-ranging criticism, the courts appear accepting of the fact that, in the digital era, while privacy injunctions may face attack from online publication, they can still be a valid legal remedy.
The case of PJS has highlighted the distinction between claims for breach of confidence, and those for misuse of private information. It is now clear that the courts take the view that while confidentiality can be lost rendering an injunction pointless in this context, if the information is of a private nature an injunction may still be a viable remedy on the basis that unrestricted publication would be a misuse of such information. Specifically, in the context of the PJS matter, it was determined that the additional publication which would take place were the injunction to be lifted would be significant from a qualitative perspective.
Throughout the proceedings, the question of whether or not the private sexual encounters of PJS are ‘in the public interest’ was considered repeatedly. Although not breaking new ground, the conclusion reached by the Supreme Court - that what is interesting to the public is not necessarily the same as what is in the public interest - provides a useful restatement of one of the key factors to be considered when conducting the balancing exercise between article 8 and article 10.
While the editors of the tabloid newspapers were no doubt appalled at the decision taken by the court, what is now clear is that the judiciary is prepared to stand strong in the face of immense public pressure from the media and maintain that those of us who live in England and Wales are not permitted to know information which is readily accessible to individuals outside the jurisdiction.
Whatever your view and whether or not the identity of PJS is ever revealed in the English and Welsh press, one thing is certain: English law has fully embraced and defined the still relatively new law of privacy. But whether this tolls the death knell for kiss and tell is another matter altogether: only time will tell.
* Steve Doughty, Daily Mail, 7 April 2016