PJS (Appellant) v News Group Newspapers Ltd (Respondent)
[2016] UKSC 26
Easter Term
[2016] UKSC 26
On appeal from: [2016] EWCA Civ 393
| JUDGMENT |
PJS (Appellant) v News Group Newspapers Ltd (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
19 May 2016
Heard on 21 April 2016
Appellant Respondent
| Desmond Browne QC | Gavin Millar QC |
David Sherborne Ben Silverstone Adam Speker
Lorna Skinner
| (Instructed by Carter- | (Instructed by Simons |
Ruck) Muirhead & Burton Solicitors)
LORD MANCE: (with whom Lord Neuberger, Lady Hale and Lord Reed agree)
Introduction
1. The interim injunction the subject of this application has attracted much attention. Whatever the decision of the Supreme Court, it will probably give rise to further, entirely legitimate, debate on the value of such injunctions in the internet age. But the majority of this Court has concluded that, in the light of legal principles that were effectively uncontroversial and for reasons more particularly summarised in paras 44 to 45 below, the application for permission to appeal should be granted and the interim injunction continued until trial or further order. The ground on which the Court acts is to preserve the privacy interests of the appellant, his partner and their young children in England and Wales, pending a trial. Without the injunction, there will be further unrestricted and extensive coverage in hard copy as well as other media in England and Wales, and the purpose of any trial will be largely undermined. On the basis of the case law, the fact that there has been significant internet and social media coverage (and limited hard copy publication outside the jurisdiction) which already invades the privacy of the appellant and his family is not
decisive. News Group Newspapers Ltd’s (“NGN’s”) purpose in applying to set aside
the interim injunction is to add extensively and in a qualitatively different medium to such invasions, without, on present evidence, having any arguably legitimate basis for this and at the risk only of having to pay damages after a trial.
2. Some may still question whether the case merits the weight of legal attention which it has received. But the law is there to protect the legitimate interests of those whose conduct may appear unappealing, as well as of children with no responsibility for such conduct. The Supreme Court must in any event apply the law as it has been laid down by Parliament, paying due regard to the case law which Parliament has required it to take account. The Court must do so in the present case in relation to what, on present evidence, appears to be a clearly unjustified proposed further invasion of the relevant privacy interests - one which is unsupported by any countervailing public interest in a legal sense, however absorbing it might be to
members of the public interested in stories about others’ private sexual encounters.
At trial, it will be open to the respondents to seek to show some genuine public interest in publication. But none has been shown to date, and, pending trial, the point of any trial should not be prejudged or rendered irrelevant by unrestricted disclosure.
3. The Court is well aware of the lesson which King Canute gave his courtiers. Unlike Canute, the courts can take steps to enforce its injunction pending trial. As
to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the
law, it is one which must be paid. Nor is the law one-sided; on setting aside John
Wilkes’ outlawry for publishing The North Briton, Lord Mansfield said that the law
must be applied even if the heavens fell: R v Wilkes (1768) 4 Burr 2527, 98 ER 327 (347). It is unlikely that the heavens will fall at our decision. It will simply give the appellant, his partner and their young children a measure of temporary protection against further and repeated invasions of privacy pending a full trial which will not have been rendered substantially irrelevant by disclosure of relatively ancient sexual history.
The facts
4. We can for the most part take the facts from Jackson LJ’s judgment in the
Court of Appeal. PJS, the claimant (now the appellant) is in the entertainment business and is married to YMA, a well-known individual in the same business. They have young children. In 2007 or 2008, the claimant met AB and, starting in 2009, they had occasional sexual encounters. AB had a partner, CD. By text message
on 15 December 2011, the claimant asked if CD was “up for a three-way”, to which
AB replied that CD was. The three then had a three-way sexual encounter, after which the sexual relationship between PJS and AB came to an end, though they remained friends for some time.
5. By or in early January 2016, AB and CD approached the editor of the Sun on Sunday, and told him about their earlier sexual encounters with PJS. The editor
notified PJS that he proposed to publish the story. PJS’s case is that publication
would breach confidence and invade privacy. He brought the present proceedings accordingly, and applied for an interim injunction to restrain the proposed publication.
6. Cranston J refused an interim injunction on 15 January, but the Court of Appeal (Jackson and King LJJ) on 22 January 2016 allowed an appeal and restrained publication of the relevant names and of details of their relationship: [2016] EWCA Civ 100. The Court provided the parties with its full judgment, but published only a redacted version omitting the names and details.
7. The injunction was effective for eleven weeks, but AB took steps to get the story published in the United States. In consequence a magazine there published an
account of PJS’s sexual activities on 6 April 2016, naming those involved. But, as a
result of representations by the appellant’s solicitors, it restricted publication to hardcopy editions only, and “geo-blocked” online publication so as to restrict this to
the United States. The evidence is that, apart from the one further state publication, the story was not taken up in America. Some other similar articles followed in Canada and in a Scottish newspaper. But, whatever the source, details started to appear on numerous websites, one of which contained equivalent detail to that which had appeared in the American magazine, as well as in social media hashtags.
8. Various English and Welsh newspapers have in these circumstances published vigorous complaints about their own inability to publish material which was available on the internet. The Times on 8 April 2016 reported that the injunction
was being “flouted on social media” after the “well-known” man was named in the
US and that the Society of Editors had condemned such injunctions as “bringing the
whole system into disrepute”. The Sun on 10 April 2016 called “on our loyal readers to help end the farce that means we can’t tell you the full story of the celebrity father’s threesome” by writing to their MPs “to get them to voice the public outcry
in parliament and bring an end to this injustice”. It set out a suggested form of letter.
It appears that an MP was by 11 April 2016 proposing to name the appellant in Parliament, something that intervention by the Speaker may have prevented. The
Mail Online on 14 April 2016 reported that it had held a survey which “found that
20 percent of the public already know who he is while others said they know how
to find out”. The online tool Google Trends shows a massive increase in the number
of internet searches relating to the appellant and YMA by their true names.
9. The Court of Appeal noted that the appellant’s solicitors have been assiduous in monitoring the internet and taking steps, wherever possible, to secure removal of offending information from URLs and web pages, but concluded that this was a hopeless task: the same information continued to reappear in new places, and tweets and other forms of social networking also ensured its free circulation. On the other
hand, the evidence of the appellant’s solicitor, Mr Tait, is that social media are
responding to objections of invasion of privacy, that a material number of links has been removed, disabled or become inactive and that Mr Tait is confident that, with the continuation of the injunction, this process will continue and it will become increasingly difficult to identify the appellant online. In the light of the Court of
Appeal’s assessment and its own review of the material available, the Supreme
Court must however assume that a significant body of internet material identifying those involved by name and reproducing details from the original American publication about their alleged activities still exists and will continue to do so for the foreseeable future.
10. On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction granted on 22 January 2016, on the grounds that the protected information was now in the public domain, and that the injunction therefore served no useful
purpose and was an unjustified interference with NGN’s own rights under article 10
of the European Convention on Human Rights (“ECHR”). By a judgment published
in slightly redacted terms on 18 April 2016, the Court of Appeal (Jackson, King and Simon LJJ) discharged the injunction: [2016] EWCA Civ 393. On 21 April 2016 the
Supreme Court heard the appellant’s application for permission to appeal together
with submissions relevant to the appeal, if permission was granted, and continuedthe interim injunction pending the delivery of the present judgment.
The statutory provisions
11. The appeal falls to be determined by reference to the Human Rights Act 1998
(“HRA”) and the ECHR rights scheduled to it. Those rights include articles 8 and
10, reading:
“Article 8
Right to respect for private and family life.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10
Freedom of expression.
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
12. HRA Section 12 provides:
“Freedom of expression.
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for
relief is made (“the respondent”) is neither present nor
represented, no such relief is to be granted unless the
court is satisfied -
a. that the applicant has taken all practicable steps to notify the respondent; or b. that there are compelling reasons why the respondent should not be notified.
(3) No such relief 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.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
a. the extent to which - i. the material has, or is about to, become available to the public; or
ii. it is, or would be, in the public interest for the material to be published;
b. any relevant privacy code.”
Cranston J’s decision
13. When refusing an injunction on 15 January 2016, Cranston J:
(i) accepted that the appellant had a reasonable expectation that his sexual activities would remain private,
(ii) added that he was “especially troubled” by the children’s privacy interests under ECHR article 8, though these could not operate as a “trump
card”,
(iii) rejected the respondent’s suggestion that the proposed publication went to any relevant matter of “public debate”, (iv) identified the appellant and his partner as portraying an image to the world of a committed relationship, accepted that “commitment may not entail monogamy”, but concluded that there was a public interest in correcting the
image by disclosing that the appellant had engaged in the sort of casual sexual
relationships demonstrated by the evidence, and(v) on that basis, and noting that the threshold test for granting an interim injunction was in this context higher than the generally applicable test in American Cyanamid Co v Ethicon Ltd [1975] AC 396, refused an injunction.
The Court of Appeal judgment of 22 January 2016
14. The Court of Appeal in its judgment of 22 January 2016 held that there were
“two significant shortcomings” in the judge’s approach, which enabled (or required)
it to re-open the matter:
(i) although the judge had correctly identified the children’s article 8
privacy rights, he had not explained how he had taken them into account;
(ii) once it was accepted that “commitment may not entail monogamy”,
there was no false image to require correction by disclosure of the appellant’s
occasional sexual encounters with others. In this connection, the Court of Appeal concluded positively that on the evidence before it the image presented by the appellant and his partner had been one of commitment not monogamy.
15. The Court of Appeal went on to identify the well-established principle that
“kiss and tell” stories which do no more than satisfy readers’ curiosity about the
private lives of other persons, however well-known to the public, do not serve any legally recognised public interest: see eg Couderc and Hachette Filipacchi Associés v France (Application No 41454/07), paras 100-101 and Axel Springer AG v Germany (Application No 39954/08), para 91. The Supreme Court will revert to this principle in paras 22-25 below.
16. There was a respondents’ notice alleging additional grounds for upholding
the judge’s decision. In this connection, the Court of Appeal agreed with the judge
that the proposed publication did not go to any matter of public debate: para 12(iii) above. Referring to Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808, which itself refers back to Terry v Persons Unknown [2010] EWHC 119 (QB), the Court accepted that the respondents were entitled to publish articles critical of people in the public eye, even though there was nothing illegal about their conduct. But it noted that the appellant had an expectation that his sexual encounters would
remain private, that the proposed story would, if published, be “devastating” for him
and that on any proper balancing his article 8 right to privacy must prevail over the
respondents’ article 10 right to publish an account of the adultery. It added that the
position of the children was also a factor to consider: the proposed article would
generate a media storm and much public interest in the appellant’s family, including
increased press attention to the children, meaning that the children would in due course learn about the relevant matters from school friends and the internet. On the evidence before the Court, the appellant was likely to establish at trial that publication should not be allowed, and had therefore satisfied the test in section 12(3) of the Human Rights Act 1998. The appeal was therefore allowed and an injunction granted.
The Court of Appeal judgment of 18 April 2016
17. In its judgment of 18 April 2016, the Court of Appeal in a judgment given by Jackson LJ, with which King and Simon LJJ agreed:
(i) accepted that claims based on confidentiality were to be distinguished from claims based on privacy, in that, while “claims for confidentiality generally fail once information has passed into the public domain”, the law “extends greater protection to privacy rights than rights in relation to
confidential material” (paras 35-36);
(ii) concluded that “a claim for misuse of private information can and
often will survive when information is in the public domain”, continuing
(para 39):
“It depends on how widely known the relevant facts are. In
many situations the claim for misuse of private information survives, but is diminished because that which the defendant publishes is already known to many readers. The publication is an invasion of privacy and hurtful for the claimant, but is not as egregious as it would otherwise be. That does not deprive the claimant of his claim for damages, but it weakens his claim for an injunction. This is for two reasons. First, the article 8 claim carries less weight, when the court carries out the balancing exercise of article 8 rights as against article 10 rights. Secondly, injunctions are a discretionary remedy. The fact that material is
generally known is relevant to the exercise of the court’s
discretion.”
(iii) added that:
“40. In this regard it is important to note that HRA section 12 does not affect the existence of the claimant’s article 8 claim
nor does it provide any defence to the tort of misusing private information. The effect of section 12 is twofold. First, it enhances the weight which article 10 rights carry in the balancing exercise. Secondly, it raises the hurdle which the claimant must overcome in order to obtain an interim injunction.
41. Although it will be a matter for the trial judge at the end of the day, I adhere to the view I expressed in January, namely that the story which NGN proposes to publish is likely to be a
breach of the claimant’s article 8 rights. What has changed is
the weight which the claimant’s article 8 rights carry, when balanced against NGN’s article 10 rights. Also the fact that
material is widely known must be relevant to the court’s
discretion.”
(iv) accepted that “the court should not set aside an injunction merely
because it has met with widespread disobedience or defiance” (para 42), but
noted that this was not a case of disobedience by the media, and that the
difficulty about any submission of defiance was that “the Internet and social
networking have a life of their own”; furthermore, that an English court “has
little control over what foreign newspapers and magazines may publish”
(para 44); and that “it does appear that those who want to find out the
individuals’ identities have already done so” (para 45).18. In these circumstances, the Court concluded, in Jackson LJ’s words, that
“47. In the situation which now prevails, I still think that the claimant is likely to establish a breach of ECHR article 8. But, notwithstanding the limited public interest in the proposed
story, I do not think that the claimant is ‘likely’ to obtain a
permanent injunction. I reach this conclusion for seven reasons:
i) Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost.
ii) Much of the harm which the injunction was intended to prevent has already occurred. The relatives, friends and business contacts of PJS and YMA all know perfectly well what it is
alleged that PJS has been doing. The ‘wall-to-wall excoriation’
which the claimant fears (CTB at 24) has been taking place for the last two weeks in the English press. There have been
numerous headlines such as ‘celebrity love cheat’ and ‘Gag celeb couple alleged to have had a threesome’. Many readers
know to whom that refers.
iii) The material which NGN wishes to publish is still private, in the sense that it concerns intimate sexual matters. I reject Mr
Millar’s submission that PJS’s article 8 rights are no longer
engaged at all. First, there are still many people, like Mr
Browne’s hypothetical purchaser of the Financial Times, who
do not know about PJS’s sex life. Secondly, NGN’s planned
publication in England will be a further unwelcome intrusion into the private lives of PJS and his family. On the other hand, it will not be a shock revelation, as publication in January would have been. The intrusion into the private lives of PJS and his family will be an increase of what they are suffering already.
iv) If the interim injunction stands, newspaper articles will continue to appear re-cycling the contents of the redacted judgment and calling upon PJS to identify himself. Websites discussing the story will continue to pop up. As one is taken down, another will appear. This process will continue up to the trial date.
v) As stated in para 59 of the previous redacted judgment (para 61 of the full judgment), NGN is entitled to publish articles criticising people in the public eye. Therefore it has an article
10 right to publish an account of PJS’s conduct. That article 10 right has to be balanced against PJS’s article 8 right for his
sexual liaisons to remain a private matter. The need to balance article 8 rights against article 10 rights means that there is a limit to how far the courts can protect individuals against the consequences of their own actions.
vi) As a result of recent events, the weight attaching to the
claimant’s article 8 right to privacy has reduced. It cannot now
be said that when the day of trial comes, PJS’s article 8 right is likely to prevail over NGN’s article 10 right to freedom of
expression, such as to warrant the imposition of a permanent
injunction.vii) Finally, the court should not make orders which are ineffective. It is in my view inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge. This must be relevant to the exercise of the court's discretion. Injunctions are a discretionary remedy.
48. I turn next to the position of YMA and the children. As explained in para 39 of my previous judgment, the interests of other family members, in particular children, are a significant consideration, but they cannot be a trump card. Paragraph 61 of the redacted judgment (para 63 of the full judgment) referred to the likelihood that, in the absence of an injunction, the children would in the future learn about these matters from school friends or the Internet. That is now a less material consideration. In my view, whether or not the court grants an injunction, it is inevitable that the two children will in due
course learn about these matters.”
Analysis of the Court of Appeal’s judgment of 18 April 2016
(i) HRA section 12
19. There is, as all members of the Supreme Court conclude, a clear error of law
in the Court of Appeal’s reasoning in relation to section 12. For reasons given in
para 20 below, it consists in the self-direction that section 12 “enhances the weight which article 10 rights carry in the balancing exercise” (para 40). The Court of
Appeal’s further self-direction, that section 12 “raises the hurdle which the claimant
must overcome in order to obtain an interim injunction” is unexceptionable, in so
far as section 12 replaces the general American Cyanamid test, focused on the
balance of convenience, with a test of whether the appellant is “likely to establish that publication should not be allowed” at trial. The position was stated more
particularly by Lord Nicholls said in Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 AC 253, para 22, in a speech with which the other members of the House agreed:
“Section 12(3) makes the likelihood of success at trial an
essential element in the court’s consideration of whether to
make an interim order. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied
the applicant’s prospects of success at the trial are sufficiently
favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood
makes the prospects of success ‘sufficiently favourable’, the
general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has
not satisfied the court he will probably (‘more likely than not’)
succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief
pending the trial or any relevant appeal.”
20. The Court of Appeal’s initial self-direction is however contrary to considerable authority, including authority at the highest level, which establishes that, even at the interlocutory stage, (i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the Court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), para 28, per Eady J, describing this as a
“very well established” methodology. The exercise of balancing article 8 and article
10 rights has been described as “analogous to the exercise of a discretion”: AAA v
Associated Newspapers Ltd [2013] EWCA Civ 554, para 8). While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis,
will not readily attract appellate intervention. The Court of Appeal’s error in its
initial self-direction is, however, one of potential significance, since it necessarily affects the balance. By itself it would require the Supreme Court to re-exercise the discretion which the Court of Appeal exercised in setting aside the injunction which
it had previously granted. But there are further aspects of the Court of Appeal’s
treatment of the issues which together lead to the same conclusion.
(ii) The reference to a “limited public interest”
21. The Court of Appeal in my opinion also erred in the reference it made, at three points in its judgment (paras 13, 30 and 47), to there being in the circumstances
even a “limited public interest” in the proposed story and in its introduction of that
supposed interest into a balancing exercise (para 47(v)). In identifying this interest, the Court of Appeal relied upon a point made by an earlier Court of Appeal in Hutcheson (and before that by Eady J in Terry), namely that the media are entitled to criticise the conduct of individuals even where is nothing illegal about it. That is obviously so. But 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. 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. It remains beside the point, however much their private sexual conduct might interest the public and help sell newspapers or copy. The matter is well put by Anthony Lester (Lord Lester of Herne Hill) in a recent book, Five Ideas
to fight for (Oneworld, 2016), p 152: “News is a business and not only a profession.
Commercial pressures push papers to publish salacious gossip and invasive stories. It is essential to ensure that those pressures do not drive newspapers to violate proper
standards of journalism.”
22. That criticism of supposed infidelity cannot be the guise under which the media can disclose kiss and tell stories of no public interest in a legal sense is
confirmed by a series of European Court of Human Rights (“ECtHR”) judgments.
Thus, in Armonienė v Lithuania [2009] EMLR 7, para 39, the Court emphasised the
duty of the press to impart information and ideas on matters of public interest, but
noted that
“a fundamental distinction needs to be made between reporting
facts - even if controversial - capable of contributing to a debate in a democratic society and making tawdry allegations about an
individual’s private life”;
In Mosley v United Kingdom [2012] EMLR 1, para 114, the Court reiterated that
“there is a distinction to be drawn between reporting facts -
even if controversial - capable of contributing to a debate of general public interest in a democratic society, and making
tawdry allegations about an individual’s private life (see
Armonienė, para 39). In respect of the former, the pre-eminent
role of the press in a democracy and its duty to act as a ‘public watchdog’ are important considerations in favour of a narrow
construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life (Von Hannover v Germany (2005)
40 EHRR 1, para 65; Hachette Filipacchi Associés (ICI PARIS) v France, no 12268/03, para 40; and MGN Ltd v United Kingdom (2001) 53 EHRR 5, para 143). Such reporting does not attract the robust protection of article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v France (dec), nos 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, para 66; Leempoel & SA E Ciné Revue v Belgium, no 64772/01, para 77, 9 November 2006; Hachette Filipacchi Associés (ICI PARIS), cited above,
para 40; and MGN Ltd, cited above, para 143.”
23. Most recently, in Couderc and Hachette Filipacchi Associés v France (Application No 40454/07), paras 100-101, the Court said:
“100. The Court has also emphasised on numerous occasions
that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a
person’s private life, however well-known that person might
be, cannot be deemed to contribute to any debate of general interest to society (see Von Hannover, cited above, para 65; MGN Ltd v United Kingdom, no 39401/04, para 143, 18 January 2011; and Alkaya v Turkey, no. 42811/06, para 35, 9 October 2012).
101. Thus, an article about the alleged extra-marital relationships of high-profile public figures who were senior State officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership (see Standard Verlags GmbH v Austria (No 2), no 21277/05, para 52, 4 June 2009). Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership (see Von Hannover, cited above, para 65, with further references). The Court reiterates in this connection that the public interest cannot be reduced to the
public’s thirst for information about the private life of others,
or to the reader’s wish for sensationalism or even voyeurism.”
24. In these circumstances, it may be that the mere reporting of sexual encounters of someone like the appellant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under article 10 at all. But, accepting that article 10 is not only engaged but capable in principle of protecting any form of expression, these cases clearly demonstrate that this type of expression is at the bottom end of the spectrum of importance (compared, for example, with freedom of political speech or a case of conduct bearing on the performance of a public office). For present purposes, any public interest in publishing such criticism must, in the absence of any other, legally recognised, public interest, be effectively disregarded in any balancing exercise and is incapable by itself of outweighing such article 8 privacy rights as the appellant enjoys.
(iii) The distinction between rights of confidence and privacy rights
25. Mr Desmond Browne QC for the appellant submits the Court of Appeal also erred by too close an assimilation of a claim based on the tort of invasion of privacy with breach of confidence. Jackson LJ recognised, correctly, that the former attracts greater protection than the latter (para 36 of his judgment: see para 17(i) above). But he went on in para 39 to suggest that, whether a claim for misuse of private
information will survive when information is in the public domain “depends on how
widely known the relevant facts are”. That suggests a quantitative test, measuring
what has already been disclosed with what is yet undisclosed. That is a test which is not only appropriate but potentially decisive in the context of an application based on confidentiality, as witnessed famously by Sunday Times v United Kingdom (No
2) (“Spycatcher No 2”) (1991) 14 EHRR 229, paras 54-55. There, the loss of secrecy
by 30 July 1987 was central to the European Court of Human Rights’ conclusion
that injunctions could after that date no longer be justified either as necessary to ensure a fair trial or to protect national security. The promotion of the efficiency and reputation of the Security Service constituted insufficient justification.
26. However, different considerations apply to the present privacy claim. First, as Mr Browne submits, a quantitative approach overlooks the invasiveness and distress involved, even in repetition of private material. Second, open hard copy exposure, as well no doubt as further internet exposure, is likely to add significantly to the overall intrusiveness and distress involved. I return to the second point in paras 34-37 below. As to the first point, there is substantial recent authority recognising
that even “the repetition of known facts about an individual may amount to
unjustified interference with the private lives not only of that person but also of those who are involved with him”: JIH v News Group Newspapers Ltd [2010] EWHC
2818 (QB), para 59, per Tugendhat J. The Court of Appeal referred (in para 25) to the submission which Mr Browne made before it to like effect, and to the supporting authority which he cited, but did not, Mr Browne submits, give effect to it in its decision. The point made in JIH is worth elaborating for its resonance on this appeal. It can be traced back to Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 260F, where Lord Keith gave examples of circumstances in which a person could be entitled to restrain disclosure of private information, which had received widespread publication abroad. It was taken up by Eady J in McKennitt v Ash [2006] EMLR 178, para 81, by Tugendhat J in Green Corns Ltd v Claverley Group Ltd [2005] EMLR 748, paras 78-79, where he said that the question was not whether information was generally accessible, but rather whether an injunction would serve a useful purpose and by Briggs J in Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), paras 22-26, where he also said that HRA
section 12(4)(a)(i) in his judgment “creates no separate or different test …, at least where … there is no suggestion that the material is about to become available to the public”.
27. Eady J and Tugendhat J have since further elaborated the significance of the principle in successive judgments in CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) and 1334 (QB). In CTB, as in the present case, an interim injunction had been granted to restrain disclosure of information about an alleged sexual relationship. In CTB the claimant was a well-known footballer who was married and had a family. In the five or so weeks after the injunction was granted, substantial information, from sources which could not be attributed to the defendant, became available on Twitter and the internet generally identifying or pointing towards the footballer. The defendants argued in effect that privacy injunctions (and no doubt other forms of injunction also) had ceased to serve any useful purpose in an age when information could be put out on various networks within or outside this jurisdiction by persons other than the immediate defendant.
28. More specifically, the defendants in CTB also placed reliance on Eady J’s
refusal of an injunction to Mr Max Mosley in Mosley v News Group Newspapers
Ltd [2008] EWHC 687 (QB). Eady J had there said that:
“The court should guard against slipping into playing the role
of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the
court to make vain gestures.”
In CTB Eady J explained why this statement did not cover the circumstances in CTB:
“18. The circumstances here are rather different. In Mosley, I took the view that there was no point in granting an injunction because, even before the application was made, several hundred thousand people had seen the intimate video footage which NGN had put on line - conduct that was recently
characterised by the ECtHR as a ‘flagrant and unjustified
intrusion’: Mosley v UK (Application No 48009/08), 10 May
2011 at 104. In a real sense, therefore, it could be said that there
was nothing left for the court to protect by an injunction.19. Here, the Internet allegations prayed in aid by Mr Spearman took place after the order was made. Different policy considerations come into play when the court is invited to abandon the protection it has given a litigant on the basis of widespread attempts to render it ineffective. Furthermore, unlike the Mosley case, there is no doubt other information that
Ms Thomas could yet publish, quite apart from this claimant’s
identity, which is not yet in the public domain. The injunction
thus continues to serve a useful purpose, from the claimant’s
point of view, for that reason alone, since she is amenable to the jurisdiction of the court. Otherwise, he would not seek to maintain it.
20. Mr Spearman’s application is therefore quite narrow. He
seeks only to vary the injunction so as to permit the claimant to
be identified. …”
In the circumstances, Eady J held that even identification should not be permitted. It will be apparent that the circumstances in CTB bore some relevant similarities to those of the present case. In particular, reliance was placed on internet disclosures subsequent to the original injunction in support of an application to set aside the injunction on the basis that it served no further useful protective purpose. This situation was distinguished in principle from that where an injunction is granted after substantial internet disclosure. The substantial internet disclosure which had occurred after the injunction was not regarded as justifying the lifting of the injunction. The injunction, enforceable against the defendant, was seen as continuing to serve a useful purpose.
29. As to the general suggestion that injunctions really have no sensible place in an internet age, Eady J said:
“23. It is important always to remember that the modern law of privacy is not concerned solely with information or ‘secrets’: it is also concerned importantly with intrusion. … [That] also
largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant: see eg McKennitt v Ash [2008] QB 73 at 80 and 87.
24. It is fairly obvious that wall-to-wall excoriation in national newspapers, whether tabloid or ‘broadsheet’, is likely
to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or
embarrassment. Mr Tomlinson argues accordingly that ‘the dam has not burst’. For so long as the court is in a position to
prevent some of that intrusion and distress, depending upon the individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down.
25 It may be thought that the wish of NGN to publish more
about this ‘story’, with a view to selling newspapers and
perhaps achieving other commercial advantages, demonstrates that coverage has not yet reached saturation point. Had it done so, the story would no longer retain any interest. This factor tends, therefore, to confirm my impression that the court's attempts to protect the claimant and his family have not yet become wholly futile.
26. In these circumstances, it seems to me that the right question for me to ask, in the light of JIH v News Group Newspapers Ltd [2011] 2 All ER 324 and In re Guardian News and Media Ltd [2010] UKSC 1, is whether there is a solid
reason why the claimant’s identity should be generally revealed
in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity. The answer is as yet in the negative. They would be engulfed in a cruel and destructive media frenzy. Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I
decline to do so. On the other side, …, it has not been suggested
that there is any legitimate public interest in publishing the
story.”
The analysis in these passages is both relevant and indeed largely transposable to the circumstances of the present appeal.
30. The same theme was developed by Tugendhat J in the second CTB judgment,
which followed the naming in Parliament by an MP of the footballer: Tugendhat J
said:
“3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from
taunting and other intrusion and harassment in the print media.”
31. Tugendhat J’s reasoning in JIH and Eady J’s reasoning in CTB were cited with approval by MacDonald J in H v A (No 2) [2015] EWHC 2630 (Fam), para 47. In so far as it is likely that the respondents in the present case would wish to accompany any stories with pictures of the relevant individuals, it is also consistent
with the Leveson Inquiry Report’s conclusion (para 3.4) that:
“There is a qualitative difference between photographs being
available online and being displayed, or blazoned, on the front page of a newspaper such as the Sun. The fact of publication in a mass circulation newspaper multiplies and magnifies the intrusion, not simply because more people will be viewing the images, but also because more people will be talking about them. Thus, the fact of publication inflates the apparent newsworthiness of the photographs by placing them more firmly within the public domain and at the top of the news
agenda.”
32. It is right that the Supreme Court should on the present application express its own view on the correctness of the approach taken in the authorities discussed in the preceding paragraphs (paras 26-32). In my opinion, the approach is sound in general principle. 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 (see paras 34-37 below).
33. However, whether an interim injunction should be granted to restrain an anticipated tortious invasion of privacy raises different considerations from those involved in the simple question whether disclosure or publication would constitute a tortious act. The courts have to apply HRA section 12, and, before restraining
publication prior to trial, have in particular to be “satisfied that the applicant is likely to establish that publication should not be allowed”. They have, under section 12(4),
to have particular regard to the importance of the article 10 right to freedom of expression, although, as already explained (paras 19-20 above), that right has no necessary claim to priority over the need to have due regard to any article 8 privacy right which the applicant for an injunction enjoys. Where, as here, the proceedings relate to journalistic material (or conduct connected to such material) the courts must also have particular regard under section 12(4)(a) to two specific factors which point potentially in different directions:
(i) the extent to which the material has, or is about to, become available to the public and
(ii) the extent to which it is, or would be, in the public interest for the material to be published.
Under section 12(4)(b), the courts must also have particular regard to any relevant privacy code.
34. As to the factor identified in section 12(4)(a)(ii), for reasons already given (paras 21-24 above), the present appeal must be approached, on the evidence presently available, on the basis that there is and would be effectively no public interest in a legal sense in further disclosure or publication. As to the factor in section 12(4)(a)(i), the requirement to have particular regard to the extent to which
journalistic material (or conduct connected with such material) “has, or is about to,
become available to the public” does not preclude a court, when deciding whether
to grant or lift injunctive relief, from having regard to both
a) the nature of the journalistic material involved and the medium in which it is, or is to be, expressed, and
b) the extent to which it is already available in that medium and the extent
to which steps are being or can be taken to remove or limit access to any other
publication in that or any other medium.
In short, the question whether material has, or is about to, become available to the public should be considered with reference to, inter alia, the medium and form in relation to which injunctive relief is sought.
35. In the light of the above, I consider that the Court of Appeal focused too narrowly on the disclosures already made on the internet, and did not give due weight to the qualitative difference in intrusiveness and distress likely to be involved in what is now proposed by way of unrestricted publication by the English media in hard copy as well as on their own internet sites. There is little doubt that there would be a media storm. It would involve not merely disclosure of names and generalised description of the nature of the sexual activities involved, but the most intimate details. This would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by the appellant, his partner and, by way of increased media attention now and/or in the future, their children. The Court of Appeal did not
do justice to this qualitative difference either when it said that the “wall-to-wall
excoriation which the claimant fears has already been taking place for the last two
weeks in the English press”, as a result of “numerous headlines such as ‘celebrity
love cheat’ and ‘Gag couple alleged to have had a threesome’” (para 47(ii), or when
it went on to refer to the likely impact of the proposed publication as “a further unwelcome intrusion”, increasing what is being suffered already, not “a shock
revelation, as publication in January would have been” (para 47(iii)).
36. As to section 12(4)(b), this is of particular relevance in relation to the appellant’s and his partner’s children. The respondents subscribe to the Independent Press Standards Organisation (“IPSO”), whose Editors’ Code of Practice of January
2016 provides that “Everyone is entitled to respect for his or her private and family
life” and that editors “will be expected to justify intrusions into any individual’s
private life without consent” (clause 3(i) and (ii)). The Code notes that there can be exceptions in the public interest, emphasising however that “editors must
demonstrate an exceptional public interest to over-ride the normally paramount
interests of [children under 16])”. The last point echoes the thinking in article 3(1) of the United Nations Convention on the Rights of the Child (providing that “In all
actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration”) which has in turn informed
the ECtHR’s and United Kingdom courts understanding of ECHR article 8: see eg
ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, H v Lord Advocate 2012 SC (UKSC) 308, H (H) v Deputy Prosecutor of the Italian Republic (Genoa) [2013] 1 AC 338 and Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690.
37. Mr Browne submits that the interests of the appellant’s children were not
given the primacy or importance which they deserved. The Court of Appeal in granting injunctive relief in January 2016 identified as relevant consequences of the
proposed article both that “the children would become the subject of increased press
attention, with all that that entails” and that, “even if they do not suffer harassment
in the short-term, they are [ie if the proposed article is published] bound to learn
about these matters from school friends and the internet in due course”. The Court
of Appeal in deciding to discharge the injunction in April 2016 addressed only the
latter consequence, saying that it was “now a less material consideration” as
“whether or not the court grants an injunction, it is inevitable that the two children
will in due course learn about these matters”. The Court of Appeal did not expressly
advert to the short term risks involved in media attention and communication of the information to young children, and still less did it advert to the qualitative difference between, on the one hand, unrestricted exposure in the hard copy media as well as on internet sites and, on the other hand, internet exposure which the appellant and those advising him have made and intend to continue to make every effort to restrict, so far as lies within their power. I prefer simply to agree with what Lady Hale says in this area in the open part of her judgment, without finding it necessary to refer to or rely on what is said in the redacted part.
(iv) An effective remedy
38. Mr Browne makes a fourth criticism of the Court of Appeal’s approach to the exercise of its discretion. The Court, having concluded that the appellant was likely at trial to establish that publication was a tortious invasion of privacy, nonetheless left the appellant to a claim for damages. It is therefore a criticism of the Court of Appeal’s exercise of the discretion which, as Lord Nicholls recognised in Cream
Holdings, exists under HRA section 12 once a court has decided that a proposed publication is likely to be tortious and goes on to consider whether the applicant is also likely to establish at trial that publication should not be allowed.
39. By exercising its discretion so as to discharge the injunction, Mr Browne submits, the Court of Appeal failed to ensure that the appellant’s privacy rights were
“practical and effective”: Von Hannover v Germany, para 40, Armonienė v
Lithuania, para 38. The submission must, however, be approached with caution at a European level, because in Mosley v United Kingdom [2012] 2012] EMLR 1, para 120, the ECtHR (when considering whether the Convention required the media, before publishing potentially private material, to inform the subject of such material) observed that
“in its examination to date of the measures in place at domestic
level to protect article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of article 8 rights arising from the publication by a newspaper of private
information.”
The ECtHR went on to explain Armonienė v Lithuania as a case where damages had
not provided an adequate remedy, because of the “derisory sum” that had been
awarded.
40. On the other hand, in Mosley v United Kingdom the ECtHR was primarily engaged in delimiting the scope of ECHR rights, particularly with regard to pre- notification, at a European level. It was not excluding the possibility of or justification for a prior restraint on publication in appropriate cases at a domestic level. Indeed, it upheld such a prior restraint in Editions Plon v France (2006) 42 EHRR 36. Further, it said this in Mosley (para 117):
“117. Finally, the Court has emphasised that while article 10
does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v United Kingdom (26 November 1991, (1992) 14 EHRR 153, para 60). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious
contribution to a debate of general public interest.”
In the present case, it can be said that there is no urgency about any publication, as well as no evident contribution to any debate of general public interest.
41. At a domestic level, the Court of Appeal has itself also recognised that the refusal of an interlocutory injunction can operate as “a strong potential disincentive to respect for aspects of private life” and that, depending on the circumstances, it
may only be by the grant of such an injunction that privacy rights can be satisfactorily protected: Douglas v Hello! Ltd (No 3) [2006] QB 125, paras 257 and
259; and that such an injunction may be “the only remedy which is of any value”: A
v B plc [2003] QB 195, para 11. Damage done by publication of a defamatory statement can be redressed by a public finding at trial that the allegation was false, but an invasion of privacy cannot be cured in a similar way, and for that reason there may never be a trial, whatever damages might be recoverable. These points are also recognised in the academic writing: see eg Freedom of Speech (OUP, 2006), by Professor Eric Barendt, p 137 and Privacy and Press Freedom (Blackstone 1995), by Professor Raymond Wacks, p 156.
42. Mr Browne further notes, with reference to the first instance decision of
Mosley v News Group Newspapers [2008] EMLR 20, that it has been held at first instance that exemplary or punitive damages are not recoverable at common law for misuse of private information. On the other hand, the contrary remains open to argument at higher levels, and whether an account of profits might be claimed is likewise open. (In future, there may be a statutory possibility of obtaining an award of exemplary damages against a publisher not a member of an approved regulator; that is under sections 34-36 of the Crime and Courts Act 2013, if a court were to be
satisfied that the respondents’ conduct “has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”, that “the conduct is such that the
court should punish the defendant for it” and that “other remedies would not be
adequate to punish that conduct”. But no approved regulator at present exists, so that
the section has no application to the present case.)
43. In any event, whether or not substantial or even exemplary damages could be recovered in the present case is not decisive of the question whether an interim injunction should be granted. Once again, it is necessary to consider the particular facts. Here, it is highly likely, having regard to the nature of the material sought to be published and the identity and financial circumstances of the appellant, that the
appellant’s real concern is indeed with the invasion of privacy that would be
involved in further disclosure and publication in the English media, and that any
award of damages, however assessed, would be an inadequate remedy.
Conclusions
44. The circumstances of this case present the Supreme Court with a difficult choice. As in the Court of Appeal, so before the Supreme Court the case falls to be approached on the basis that the appellant is likely at trial to establish that the proposed disclosure and publication is likely to involve further tortious invasion of privacy rights of the appellant and his partner as well as of their children, who have of course no conceivable involvement in the conduct in question. The invasion would, on present evidence, be clear, serious and injurious. On the other hand, those interested in a prurient story can, if they try, probably read about the identities of those involved and in some cases about the detail of the conduct, according to where they may find it on the internet. The Court will be criticised for giving undue protection to a tawdry story by continuing the injunction to trial. There is undoubtedly also some risk of further internet, social media or other activity aimed
EWHC 1777 (QB), [2008] EMLR 20, that exemplary damages cannot be awarded in an appropriate case for breach of privacy, as the final word on the subject. Proportionality is essential, but I would not rule out the possibility of the courts considering such an award to be necessary and proportionate in order to deter flagrant breaches of privacy and provide adequate protection for the person concerned.
93. I would dismiss the appeal.