Reference:  UKSC 26
Court: Supreme Court
Judge: Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Toulson
Date of judgment: 19 May 2016
Summary: PJS v News Group Newspapers – Privacy – Injunction – Court of Appeal – Article 8 – Article 10 – Sun on Sunday – Publicity - Permission to Appeal - Appeal - Supreme Court - whether to uphold decision of Court of Appeal to discharge interim injunction
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Appearances: Desmond Browne CBE KC - Leading Counsel (Appellant) David Sherborne (Appellant) Adam Speker KC (Appellant)
Instructing Solicitors: Carter-Ruck for PJS; Simons Muirhead Burton for NGN
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. On 18 April 2016 the Court of Appeal acceded to NGN’s application and discharged the injunction subject to a stay to allow PJS to seek permission from the Supreme Court. The Supreme Court agreed to hear PJS’s permission application, and, if successful, his appeal, at the same time, 3 days later.
Whether the Court of Appeal had been correct to discharge the injunction.
By a majority of 4-1 (Lord Toulson dissenting) re-instating the injunction until trial or further order:
- The Court of Appeal had made an error of law in its reasoning in relation to section 12 of the Human Rights Act 1998 by asserting that it enhanced the weight which article 10 carries in the balancing exercise between that right and article 8: 
- It had also erred in referring to a ‘limited public interest’ in the proposed story. Criticism of a person’s conduct cannot be a pretext for invasion privacy by disclosure of alleged sexual infidelity, which is of no real public interest in a legal sense: -, . 
- Different considerations apply where a claimant is relying upon the tort of misuse of private information to breach of confidence. The Court of Appeal focussed 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 unrestricted publication in the English media: . In this regard, the court should have regard to the rights of the claimant’s children and the IPSO Editors’ Code of Practice.
The Supreme Court has now endorsed and vindicated the approach taken by Eady and Tugendat JJ in CTB and other similar cases ruling that the tort of misuse of private information protects different values to breach of confidence and an injunction can still have value even if the information it protects is known to some.
The majority are very strong on the lack of public interest in ‘kiss and tell’ stories even questioning at  whether the mere reporting of sexual encounters with a view to criticising those involved falls within the concept of freedom of expression under article 10 at all.