PJS applied successfully to the Supreme Court for the continuance of an interlocutory injunction preventing News Group Newspapers (NGN) Ltd from publishing - in England and Wales - a newspaper story identifying him as a famous celebrity, who had engaged in sexual activity involving two other people when he was in a civil partnership with YMA (who he married subsequently). This was despite the fact the identity of PJS and details about his sexual activity were readily available on the internet, and a hard copy of the story had been published in a Scottish newspaper. The Supreme Court allowed the injunction to remain in place by a 4:1 majority. The majority were Lord Mance, Lord Neuberger, Lady Hale and Lord Reed; the dissenter was Lord Toulson.
PJS could not pursue a remedy based on a right to respect for his private life in article 8 of the European Convention on Human Rights (‘ the convention’ ). This was because Human Rights Act (HRA) 1998 s6(1) states that: ‘[ i]t is unlawful for a public authority to act in a way which is incompatible with a convention right’ , but NGN, as part of the commercial press, is not a ‘public authority’ ; in addition, there is no statute to be interpreted in a compatible way with the convention as required by HRA s3. However, the convention remains relevant because the Supreme Court is a public authority, and it is obliged to develop domestic law in a way which is compatible with convention rights. This is known as indirect horizontal effect. The question is whether this creates new law … before this case there was no tort of invasion of privacy
The two possible wrongs are as follows:
These were held to be separate wrongs in Google Inc v Vidal-Hall , Hann and Bradshaw and Information Commissioner (intervener) [2015] EWCA Civ 311 (see box on next page).
However, in PJS Lord Mance (who gave the leading judgment) appears to create a new law:
… Every case must be considered on its particular facts. But the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made - especially if it occurs in a different medium (para 32).
The question is whether this creates new law, as before this case there was no tort of invasion of privacy known to the law. This cannot be answered with complete confidence as when Lord Mance was discussing what damages would be available for the wrong, he referred to ‘misuse of private information’ (para 42). It may be that Lord Mance was referring to the tort of misuse of private information, and that this tort and the tort of invasion of privacy were the same. Lord Neuberger (who agreed with Lord Mance) referred to an individual’s rights in respect of ‘confidentiality and intrusion’ , and while the injunction could not preserve the confidentiality of the identity of PJS (and of his spouse, YMA, and their children) it could prevent ‘intrusion or harassment’ (paras 60, 62 and 63). Publishing the story in print could lead to intrusion, as newspapers have greater impact and creditability than the internet. This effect points to a tort of invasion of privacy (as it is now to be called) based on intrusion. Whether this is to be regarded as a development of existing law or new law is a moot point. In his dissent, Lord Toulson stated that the story is so porous that an injunction was pointless and there was no difference in publication on the internet and in the print or broadcast media (paras 86 and 89).
The injunction is not permanent, and can only be made so after a trial. Section 12(3) of the HRA states that no interim injunction is to be ‘granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed’ . A permanent injunction is needed to prevent the tort of invasion of privacy, and obviously the Supreme Court majority believes that PJS is likely to establish this at trial.
Consider the following:
If NGN published the story, there would be no breach of PJS’s article 8 rights by NGN because it is not a public authority; however, publication could constitute the tort of invasion of privacy by NGN. The purpose of an injunction would be to prevent the tort; however, the trial court - as a public authority - would have to balance PJS’s right to respect for his private and family life against NGN’s right to freedom of expression under article 10 of the convention when deciding whether or not to make the injunction permanent.
Section 12(4) of the HRA provides that the court must have particular regard to the importance of article 10, and requires the court to take into consideration whether the story is likely to be available to the public, the public interest in publication and any privacy code such as the Independent Press Standards Organisation’s Editors’ Code of Practice, which came into force in January 2016. However, section 12 does not give greater weight to article 10: ‘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’ (per Lord Neuberger at para 51).
In view of the majority decision in the Supreme Court, at trial the balance is very likely to come down in favour of PJS’s article 8 rights because of the intrusion that would be caused by a print publication (not only to PJS, but also to YMA and their children), so that a permanent injunction would be required to prevent the tort of invasion of privacy by NGN.
Not surprisingly, the Supreme Court’s decision has caused a storm in the print mass media. If the Supreme Court has got the balance wrong and the law is an ass, it will be for parliament to amend HRA s12 to make it clear that greater weight must be given to article 10 convention rights.
The respondents claimed that Google had collected private information about their use of the internet, through the Apple Safari browser, without their knowledge and consent via cookies. Google passed the information thus gathered to advertisers, which used it to select advertisements that were of particular interest to the respondents. These advertisements would be displayed when the respondents used their computers. This private information could be seen by third parties. This process was contrary to Google’s policy that such activity would only be conducted for Safari users with their permission.
The Court of Appeal ruled that this process constituted misuse of private information, which is a tort. This was the first time this tort had been recognised explicitly as a tort, and that it was separate from the equitable action for breach of confidence.
The Supreme Court granted permission to Google to appeal in part (the court ordered that permission to appeal be refused on the issue of whether the claim was in tort because this ground did not raise an arguable point of law). However, the appeal will not be heard as the claim has been settled.