The celebrity threesome and a judicial foursome

Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.

Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?

Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”

Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.

Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.” 

 This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:

“There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)

The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference?

Background
First we must be clear about what judgments the courts were being asked to make in this case so far. They were considering an interlocutory injunction, that is interim injunction pending a full trial of the issues. They were not hearing a case for a permanent ban on publication nor for damages as a result of publication – the two remedies victims can claim in such cases.

The judges in the Supreme Court and the lower courts that have considered the case so far have therefore had to do two balancing exercises: 

a) look at the newspaper’s right to freedom of expression (Article 10 European Convention on Human Rights) versus the right to privacy (Article 8); 

b) look at the likelihood of PJS ultimately winning his substantive case (for permanent injunction and/or damages) and, if so, whether publication now would mean he could not be adequately compensated in money terms for his unlawful loss of privacy (under Article 10) and English Common Law breach of confidence.

Since a permanent injunction is one of the options available to judges in the ultimate trial, this second balancing exercise would normally come to the obvious conclusion: if the courts allowed publication now, it would be denying PJS one of his potential long-run remedies. Everyone would know his name so it would be too late to protect it. Damages might still be available, but how could they compensate loss of privacy?

So in the normal run of such cases judges look at the American Cyanamid principles on whether an applicant has an adequate case for the granting of an interlocutory injunction. Judges consider:

• whether the applicant had a strong or merely an arguable case;
• the likelihood of a permanent injunction at trial;
• the adequacy of damages as a remedy if he wins the substantive trial;
• the balance of convenience;
• whether the status quo should be maintained.

Section 12(3) of the Human Rights Act is added in to emphasise a freedom of expression consideration, saying:

“No such relief [ie interim banning 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 [ie at the full trial].”

So a judge considering an interim injunction must, to an extent, try to prejudge the ultimate outcome of the privacy/confidentiality case when it eventually comes to court and answer the questions: will the applicant (PJS) win and if so will he:

a) be granted a permanent injunction halting the revelation of his name and his alleged extramarital activities, or

b) simply be awarded the opportunity to seek damages from all those who, in breach of his confidentiality or privacy rights, publish the material.

In this case, however, thanks to publication in America, Canada and Scotland, “the whole world” already knows who PJS is, except for those in England and Wales – and even there anyone interested in the matter (and many who aren’t) also know thanks to the Internet.

The Court of Appeal in April (after initially imposing an injunction in January) therefore came to the conclusion that PJS was most unlikely to get a permanent injunction at trial, since the cat was already out of the bag. Though it assessed his case as “strong rather than merely arguable”, damages would be his only recourse. It ruled the injunction should be lifted but held in place pending appeal to the Supreme Court.

Legal issues
In the Court of Appeal (April 2016) Lord Justice Jackson had said that Section 12 of the Human Rights Act “enhances the weight which [ECHR] article 10 rights carry in the balancing exercise. Secondly, it raises the hurdle which the claimant [PJS] must overcome in order to obtain an interim injunction” ([2016] EWCA Civ 393 para 40).

Jackson was clear that PJS was likely to win his damages case ultimately – yet considered News Group had an “enhanced” right to publish the material beforehand anyway once it had leaked out elsewhere – a sort of freestanding right to publish what others were already publishing – having considered the extent to which “the material has, or is about to, become available to the public” (HRA S.12(4)(i)).

News Group’s argument at this stage was that “the protected information” was now neither confidential nor private; it “had entered the public domain; therefore the injunction served no useful purpose and was an unjustified interference with NGN’s rights under ECHR article 10”. (Para 20)

It is well established that confidential information, once public, is no longer protected. Furthermore the argument is that, in effect, a “public interest” is enshrined in Article 10 (enhanced by the HRA S.12) because PJS’s behaviour and the litigation around it had prompted a “public debate” – about free speech if not specifically about PJS’s morals. Material that “contributes to a debate of general interest” is protected by Article 10 which should trump the merely private interest of PSJ now his name is known to anyone who wishes to find it. 

It’s not a bad point. Such a debate might, of course, be better prosecuted in measured legal postings such as this one than in the screaming headlines of the Sun and the Daily Mail. But even this blog post is severely circumscribed regarding what it can say about the legal issues, particularly about the potential public interest in what Mance acknowledged as the “tawdry” story of PJS’s behaviour.

So Jackson ruled the injunction should be lifted a) because a permanent injunction was unlikely at full trial (though damages remained highly likely); and b) because of an enhanced right to freedom of expression thanks to HRA S.12. In effect, he was saying the court had no right to hold back publication of what was published elsewhere already.

The Supreme Court 
In contrast, the four Supreme Court justices argued, in effect, that it had no right to sanction publication of something that, on balance, was likely to be found unlawful in the long run.

Lord Neuberger at the Supreme Court insisted there was no such “enhanced” Article 10 freedom of speech right – Article 10 and Article 8 must be seen as equally important in the balancing exercise “and the question is which way the balance falls in the light of the specific facts and considerations in a particular case” – including the existence of the couple’s two children and the effect the revelation might have on them. ([2016] UKSC 26 Para 51)

Furthermore the Court of Appeal had already declared (at the January hearing) that “‘kiss-and-tell’ stories about a public figure which do no more than satisfy readers’ curiosity concerning his private life do not serve the public interest” (following the European Court of Human Rights case Couderc pdf).

In April Jackson had said there was “limited” public interest in the story. That having been, apparently, established and not challenged by News Group, the Supreme Court felt able to reimpose the injunction.

The real issues
It might be wondered why News Group failed to run a public interest case for lifting the injunction (ie based on the nature of the material rather than a general “right to know”), one that, apparently might have held some sway with Neuberger. The technical legal reason is acknowledged by Neuberger:

“This is an application to discharge an interlocutory judgment before the trial of the action concerned. NGN [News Group]’s case must therefore be that the interlocutory injunction should be revoked because of ‘some significant change of circumstances’ since it was granted in January 2016.”

News Group had won in the High Court, lost in the first Court of Appeal case. So in the second case before the Court of Appeal only “change of circumstances” could be argued – and that change was that the threesome story by April was published in the US, Canada and Scotland and available on the Internet – and hence was part of “public debate”. That was the limit of the argument News Group could put to that particular hearing.

Fortuitiously, though, it was also in the interests of News Group, and the tabloid press generally, to argue for a clear right to publish material, whether in the public interest or not, if that material is already available on the Internet. It would be an abiding and useful get out of jail free card in cases like this. 

If the second Court of Appeal judgment had been upheld by the Supreme Court newspapers would never again have to make a public interest defence against injunction in a confidentiality or privacy case – so long as the same material was out there on the Internet already. The proud British tradition of kiss-and-tell, which seemed moribund after Leveson, would be back in business. And business is what it’s all about, as the Supreme Court recognised. Even though the three-in-a-bed material has already been published, there is still money to be made out of picking over the bones of the story by the printed media in England and Wales.

So, rather than run a public interest case about the content of any story that might be published in the Sun on Sunday, (the name, the facts, some stentorian moralising material) News Group argued it was in the public interest simply to be able to run such a story, ie that “the public interest in freedom of expression and in the story being published outweighed any privacy rights enjoyed by PJS” (Neuberger para 48).

But the Supreme Court has reimposed the injunction saying that without a proven public interest in the content, there is no free-standing public interest in publication. The court can’t sanction for one media outlet what it believes, on balance, will be deemed unlawful at trial, even if others have published the material already. Thus Mance (para 24):

“For present purposes, any public interest in publishing such criticism [of PJS] 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 [PJS] enjoys.”(Emphasis added)

Comment
It follows that the four Supreme Court justices who favoured reimposing the injunction must believe that there is a good chance that a court when the matter comes to trial (back at the High Court presumably since it must start from scratch) will grant a permanent injunction against publication even though the horse has bolted and is grazing happily in other parts of the virtual world.

But it has come to this view, not on the basis of hearing why the story of PJS might be in the public interest, but on the basis of a sort of phoney war in the world of interlocutory injunctions in which the full arguments could not be put and News Group had some incentive to play inferior cards to win a bigger game – a blanket right to publish what was already in the public domain.

So this explains Mance’s circumspect words in his judgment (but not to the press), that  “on present evidence” there is no public interest “in any legal sense” in the story, even if “one may emerge” in evidence at trial.

To the press Mance added that “it is different if the story has some bearing on … the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.” This may be a shot across the bows, designed to suggest that the UK Supreme Court sees no public interest in the story at all so no lower courts is likely to either. The implication is that News Group should think again about pursuing the matter.

The injunction makes it impossible to disagree in this post with his Lordship – but does not prevent News Group lawyers crawling all over the story of PJS and his threesome to extract a public interest claim out of this tawdry tale.

Legal note: Arguably the Supreme Court has – let us say – progressed the law in this judgment to embed a new free-standing right to privacy, based on the notion of “intrusion”, where privacy law used to be based in Common Law confidentiality married to observance of European Convention Article 10 rights.

The modern privacy law was originally founded in the Common Law of confidentiality as interpreted in the light of Article 10 as is require by the Human Rights Act, section 6(1): “It is unlawful for a public authority [including a court] to act in a way which is incompatible with a Convention right.”

As Lady Hale put it in Campbell v MGN (2004) “if there is a relevant cause of action applicable [Common Law breach of confidence], the court as a public authority must act compatibly with both parties’ Convention rights.” In the PJS injunction case, though, there is arguably no such cause of action given the material has been published (ie is no longer “confidential” and so it’s actually too late to injunct it).

The Supreme Court nevertheless now seems to have asserted a right to privacy quite separate from confidentiality and capable of being supported by injunction. Indeed Lord Neuberger said (at para 53) the Court of Appeal was wrong to conflate confidentiality with the “intrusive and distressing effect” of the story – implying privacy injunctions are available separately from confidentiality injunctions: they can be used to halt “distressing” coverage of material that is already well known – certainly in PJS’s circle of friends as well as to his business associates, to acquaintances and to much of the world at large.

This right apparently involves not mere revelation of facts (the who and the what of the threesome that anyone can find out) but also the nature of the coverage – the sensationalism but also, one must assume, the mordant moralism likely to accompany it. So Neuberger notes that:

“If PJS’s case was simply based on confidentiality (or secrecy), then, while I would not characterise his claim for a permanent injunction as hopeless, it would have substantial difficulties.” (para 57)

Neuberger goes on to quote with approval Mr Justice Eady, fingered by the tabloid press for his singe-minded (if not single-handed) creation of an English privacy law:

“It is fairly obvious that wall-to-wall excoriation in national newspapers … 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”. CTB [2011] EWHC 1326 (QB)

In other words, the gag stays in force because PJS has done something that he finds morally unproblematic (we’re told he has an “open marriage”) yet which he would be mortified to have commented on in the vigorous, no-holds-barred manner that is traditional in the British press.

Links
Campbell and its implications is discussed here: Privacy and judicial underwear
A Sun on Sunday barrister puts his view here: Inforrm’s blog
See Goodwin v News Group Newspapers Ltd [2011] EMLR 27 on separation of privacy and confidentiality, especially paragraph 85 et seqq.
On damages for misuse of private information see Gulati v Mirror Group

Other items of interest on privacy:
Paul Weller’s children
Leveson: Kiss goodbye to kiss-and-tell
Von Hannover and Axel Springer
Neuberger superinjunction report
Jemima Khan, Max Mosley injunctions      

On public interest
See Alkaya v Turkey 42811/06: “… 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.”

The PJS litigation
PJS (Appellant) v News Group Newspapers Ltd (Respondent) [2016] UKSC 26 (Supreme Court)

PJS v News Group Newspapers Ltd  [2016] EWCA Civ 393  (Court of Appeal April: lifted injunction)

PJS v News Group Newspapers Ltd [2016] EWCA Civ 100  (Court of Appeal January; imposed injunction)

Thanks to Bailii.org

 

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