Supreme Court rules celebrity threesome privacy injunction to stay in force

In the long-running saga of PJS v News Group Newspapers Ltd [2016] UKSC 26 the Supreme Court has ruled by 4-1 in favour of maintaining a privacy injunction through until trial. The injunction was originally granted by the Court of Appeal on 22 January 2016. It prevents the publication of a story concerning an anonymous celebrity said to have engaged in an extra-marital ‘threesome’. Following the identification of the Claimant and their spouse in other jurisdictions and on social media, the Defendant New Group Newspapers Ltd (the publishers of The Sun) applied to have the injunction discharged. On 18 April 2016 the Court of Appeal agreed, but stayed execution of the order pending an appeal to the Supreme Court.

Our blog on the earlier decisions can be found here.

On 21 April 2016 the Supreme Court heard a ‘rolled up’ permission/appeal hearing. Judgment was reserved until 19 May 2016. A copy of the summary of the judgment can be found here. This is also available below as a video delivered by Lord Mance at the hand-down hearing:-

The full judgment is available here.

The Supreme Court held that:-

The Court of Appeal had wrongly directed itself in relation to section 12 of the Human Rights Act 1998 by finding it gave enhanced Article 10 freedom of expression rights (under the European Convention on Human Rights (ECHR)). Case law made it clear that neither Article 10 or Article 8 (right to respect for privacy and family) rights had precedent and an intense focus on the comparative rights were required.
There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved.
It was necessary to distinguish between claims for breach of confidence and breach of privacy. The availability of the information might mean a permanent injunction based on breach of confidence was unlikely. However, different factors applied for an injunction based on the misuse of private information, including the impact of additional disclosure, the likely distress this would cause and the intrusion. The medium was relevant. There was a qualitative difference between the online coverage to date and the “media storm” which would follow following the publication of a story in the mainstream press.
Publication would be contrary to the interests of the Claimant’s children and in breach of the Editor’s Code of Practice.
Damages would be an ineffective remedy for the Claimant and his family.
It was likely, notwithstanding the online/social media publications, that the Claimant would establish at trial the proposed publication by NGN would be a serious breach of his and his family’s privacy rights with no countervailing public interest.

Having allowed the appeal the injunction will now remain in force until trial.

Click here if you require more information on how Brett Wilson LLP privacy solicitors can assist you if your privacy has been breached.