Court of Appeal grants "celebrity threesome" privacy injunction and then discharges it

The Supreme Court is currently considering an appeal against a decision of the Court of Appeal to discharge a non-disclosure injunction it granted itself earlier this year.  Until the Supreme Court has reached its decision the injunction in PJS v News Group Newspapers Ltd - the "celebrity threesome gagging order" - will remain in force.

As with most privacy injunctions, the original decision in PJS v News Group Newspapers Ltd [2016] EWCA Civ 100, was grossly misreported by a self-interested press which seemingly believes that it should have carte blanche to publish whatever it wants about our private lives.

Over the last month considerable column inches have been devoted this week to the "outrageous" fact that English newspapers cannot name those involved in a "celebrity threesome", whereas those based outside the jurisdiction (including Scotland, Ireland and the USA) are purportedly doing just that.  There have even been murmurings from the government that it will do something to stop courts from gagging newspapers in the future.  The findings of the Leveson Report, and specifically the recognition that in the past the press often intruded too far into our private lives, seem a distant memory.

Very little has been published in the press about the merits of the original decision (made back on 22 January 2016), which was the first application for a privacy injunction heard by the Court of Appeal for five years.

Background

The Claimant works in the entertainment industry and is married to YMA, who is also well-known in the entertainment industry. They have young children together.

The Claimant and YMA have an "open relationship".  Indeed, the proceedings came about as a result of a “three-way sexual encounter” the Claimant had with an individual, AB, and their partner, CD.

AB and CD subsequently approached the editor of the Sun on Sunday with details of their sexual encounters with YMA.  The newspaper was poised to print a "kiss and tell" story.

The first instance decision

The Claimant made an urgent application for an interim injunction to Cranston J to restrain NGN, the publisher of the Sun on Sunday, from publishing the proposed story.

The Claimant argued, inter alia, that such a story would be a gross intrusion into his private and family life.  An individual has a right to respect for their private and family life under Article 8 of the European Convention on Human Rights ('Article 8').

The Defendant argued that the story would contribute to a relevant ongoing public debate. This was because the claimant and YMA had put many details of their relationship in the public domain that did not show the true picture.  It argued that it was in the public interest that the Defendant should be able to publish details of the Claimant’s sexual activities outside of their relationship.  As such, the Defendant asserted that its right to freedom of expression ('Article 10') overrode the Claimant's Article 8 rights.

Despite expressing concern about the possible effect on the Claimant and YMA’s children, Cranston J held that “the Article 8 rights of the children cannot operate as a trump card” and refused to grant an injunction based on the fact that there was a public interest in correcting the public image that had been promoted by the Claimant.

The appeal

The Claimant appealed Cranston J’s decision. The Court of Appeal first considered whether it was able to consider the appeal based on the decision in AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 that “an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach…”   The Court of Appeal found that this high threshold was met and it was appropriate to interfere with Cranston J's decision.

The Court agreed with the Claimant that Cranston J had erred by (i) not explaining how he had taken the children’s Article 8 rights into account when making his decision and (ii) that given the Claimant and YMA were in a committed relationship (despite the Claimant’s occasional sexual dalliances), there was no false image in the press that required correction.

The Court then considered whether the press articles and other public material previously published about the Claimant and YMA went further than portraying commitment (i.e. whether they were presenting an image of monogamy to the world). The Court held that the Claimant was not under a duty to correct the limited number (two) of articles previously published about him that referred to monogamy. The proposed story would only provide supplementary information about the Claimant’s sexual encounters, but not correct a false image.

The Court also concluded that the proposed story would not advance any public debate or provide support for any of the competing opinions which were in circulation.  In concluding that the Claimant’s Article 8 rights should prevail over the Defendant’s Article 10 rights (and therefore granting an injunction restraining the Defendant from publishing the proposed article), Lord Justice Jackson commented that the proposed story would be “devastating” for the Claimant.  In particular, he expressed concern that the couple’s children would be the subject of increased press attention and would almost certainly find out details of the incident from friends and the internet in due course.

The application to discharge

By the 15 April 2016, the media had whipped up enough of a frenzy for NGN to apply to have the injunction discharged.  The application was essentially made on the basis that the Claimant could no longer argue they had a reasonable expectation of privacy now that the cat was out of the bag and had gone walkabouts across social media platforms.

For the purposes of the discharge application it was agreed that the original decision of the Court of Appeal (including that the public interest failed to override the Claimant's privacy rights) was correct.

The Court of Appeal allowed the application, with Jackson LJ citing 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 paragraph 59 of the previous redacted judgment (paragraph 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."

The Court found that whilst the Claimant was still likely to establish a breach of an Article 8 ECHR rights, that - for the above reasons - they were not "likely" to obtain a permanent injunction after trial.  As such, the interim injunction non-disclosure order should not remain in force.

A full copy of its judgment (PJS v News Group Newspapers Ltd [2016] EWCA Civ 39) can be found here.

The discharge of the injunction was stayed for two days so that the Claimant could apply to the Supreme Court for permission to appeal.

The Supreme Court

The Supreme Court heard a rolled-up permission application/appeal on 21 April 2016.  After hearing from both parties the Court reserved judgment, stating it would hand down its decision as soon as it could.   The stay of the discharge order will remain in force until this time.

Comment

The original Court of Appeal order

The Court of Appeal's original decision in January 2016 was a welcome reminder of the importance the Court will place on an individual’s Article 8 privacy rights, particularly in circumstances where children are involved, when there is no compelling and overriding public interest in making very private information public.

The Court was satisfied that the Claimant remained in a committed relationship with their partner despite the Claimant’s occasional adulterous behaviour, which meant that there was no ‘false’ image presented to the public that needed correcting by the newspaper.  The Court will not look to make moral judgements about the way in which individuals conduct their relationships, but will look at the wider context and whether the information that has already been put into the public domain is contrary to the reality.

The decision also builds on the decision of Weller & Ors v Associated Newspapers Ltd [2015] EWCA Civ 1176 in placing significant importance on the Article 8 rights of children in any ‘balancing exercise’ [between Articles 8 and 10].

The Court of Appeal's original decision was in fact only controversial because the press have sought to make it so.  One needs to strip back the faux media outrage and ask themselves "Am I entitled to expect facts relating to my sex life to be kept private?"  If yes, then the next question is "Should celebrities be treated differently?"  The answer to this is clearly no - not in normal circumstances at least.  An individual's right to privacy in respect of their sex life should only be overridden if there is a clear public interest in such details being expressed.   When it comes to celebrity "kiss and tell" stories this public interest is often absent, because the actual interest is normally simply titillation, scandal, gossip and the desire to know something intimate or embarrassing about someone (that we know we really should not know).  It is trite law that the public interest is not the same as 'what the public is interested in'.

There will of course be cases where there is an overriding public interest, for example where a prominent politician has spoken out against prostitution, but secretly frequents brothels.

The discharge application and the future

The developments in the last month are of particular concern to proponents of privacy law, particularly now the Court of Appeal has agreed that the order should be discharged.

The press would very much like to see the death of the privacy injunction.  It is doing this in several ways.  It is trying to manipulate public sentiment, in order to put pressure on the government to legislate (and governments are understandably terrified of being on the wrong end of the press).

Perhaps more effectively, the press is trying to send out a clear message to potential applicants that obtaining an injunction is futile and will do more harm than good.  It does this by creating a bigger story around the injunction itself, which brings more attention to the information the applicant is seeking to suppress.  This is known as the Streisand effect.

One can have some sympathy towards a newspaper that cannot publish a scoop which is being circulated on social media.  However, the Attorney-General has specifically warned that anyone publishing the identity of the parties in this case on social media could face contempt of court proceedings (if anyone is found in contempt they risk imprisonment).

The fact that conduct is not lawful in one country is rarely a good reason, on its own, for why it should be permitted in another country.  That we recognise an individual's right to privacy should perhaps be something in which we take pride, rather than complain about (all of us may one day need to seek to enforce our own Article 8 rights).  Equally, that a law is difficult to enforce is not a reason to abandon the rule of law.  Indeed, the internet was until relatively recently considered by many to be akin to the Wild West: lawless.  However, like with the Wild West some law and order has been established.  Internet trolls are now routinely identified and prosecuted.  Those who once defamed with impunity are frequently sued so that reputations can be restored.

It will be interesting to see whether the Supreme Court will uphold the Court of Appeal's decision. If it does then this could establish a dangerous precedent; all one would need to do in the future would be to leak a story to a foreign publisher, or spread a rumour on social media, in order to undermine a claimant's Article 8 rights.  This could spell the end for privacy injunctions or, alternatively as some commentators have suggested, could see applicants seeking 'super-injunctions': where the press are not only prohibited from naming the parties, but are also prohibited from reporting on the existence of the injunction itself.  This would seem a drastic measure, but if this was the only effective remedy for individuals to enforce their Article 8 rights then the press would only have themselves to blame for having brought down the current system.

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