Full case report

PJS v News Group Newspapers (2)

Reference [2016] EWCA Civ 393
Court Court of Appeal (Civil Division)

Judge Lord Justice Jackson, Lady Justice King, Lord Justice Simon

Date of Judgment 18 Apr 2016


Summary

PJS v News Group Newspapers – Privacy – Injunction – Court of Appeal – Article 8 – Article 10 – Sun on Sunday – Publicity


Facts

The Claimant (‘PJS’) sought an injunction restraining publication of the fact that, in 2011, he had a three-way sexual encounter with ‘AB’ and ‘CD’.

At first instance, the judge declined to grant an injunction. On appeal the Court of Appeal allowed the appeal and granted the injunction.

In early April the story of PJS’s sexual activities was published in a magazine in the US, and subsequently in publications in the USA, Canada, Scotland, and on the internet. The Claimant’s solicitors took steps to seek to remove material, but the information appeared on numerous websites and on social media. Newspapers in England and Wales reported the contents of the published judgment complaining that they could not name the persons involved.

The Defendant, NGN, returned to the Court of Appeal seeking the discharge the injunction, on the ground that the information protected by the injunction had now entered the public domain, and therefore the injunction served no purpose and was an unjustified interference with the Defendant’s Article 10 rights.


Issue

Had circumstances changed such that the injunction should be discharged?


Held

Ruling that the injunction should be discharged, but leaving it in place pending an appeal to the Supreme Court:

1)The court rejected the argument that the injunction should be discharged because the present case has stimulated a public debate to which publishing the protected information would contribute. It is not permissible for the media to stir up debate about an injunction to which they are subject and then rely on that as a ground for discharging the injunction.

2) As to the argument that the court should not discharge an order merely because it has met with disobedience or defiance, the court drew a distinction between succumbing to disobedience or defiance, and accepting that there has been and is likely to be extensive dissemination of the material. In the latter scenario, the court must consider on the facts whether the order should be maintained.

3) The Claimant is likely to establish a breach of Article 8 ECHR at trial, but, despite the limited public interest in the proposed story, is not “likely” to obtain a permanent injunction at trial (as required section 12(3) Human Rights Act 1998 for the court to grant an interim injunction), because:

i. Knowledge of the protected information is now so widespread the confidentiality is probably lost;

ii. Must of the harm the injunction was intended to prevent has already occurred;

iii. The material which the Defendant wishes to publish is still private, but it will not be a shock revelation as it would have been, rather the intrusion into the lives of PJS and family will be an increase of what they are already suffering;

iv. If the interim injunction stands, news stories about it will continue up to trial;

v. NGN’s Article 10 rights have to be balanced against PJS’ Article 8 rights. The need for this balance means there is a limit to how far the courts can protect individuals against the consequences of their own actions;

vi. As a result of the publicity the weight attaching to the Claimant’s Article 8 rights has reduced, such that it cannot now be said that they will prevail over NGN’s Article 10 rights such as to warrant a permanent injunction;

vii. The court should not make order which are ineffective. It is inappropriate to ban people from saying that which is common knowledge. This is relevant to the court’s exercise of its discretion as to whether to grant an injunction.

4) The position of the children is a significant consideration but not a trump card. It is now a less material consideration, as whether or not the court grants the injunction it is inevitable that the children will learn about these matters in due course.


Comment

The court distinguished between whether the Claimant had a claim that may sound in damages, and whether an injunction should be granted. At the end of its judgment the court made clear that should NGN choose to publish they would still face the Claimant’s claims for breach of confidence and misuse of private information [at 50]. The court emphasised that these two claims will have to be considered separately, as the two separate causes of action they are [at 34]. The court also expressed the view [at 39] that a claim for misuse of private information can, and often will, survive the information being in the public domain.

Note: The case is being appealed to the Supreme Court, with the appeal to be heard on Thursday 21 April at 9.30am.


Instructing Solicitors

Carter-Ruck for the Apellant, Simons Muirhead & Burton for the Respondent


Links

Judgment