Appeal allowed, injunction continued until trial
The Supreme Court today, by a majority of 4-1, allowed the appeal of PJS and continued the injunction to prevent reporting until trial or further order.
PJS is a married celebrity who sought an injunction restraining publication of the fact that, in 2011, he had a three-way sexual encounter with ‘AB’ and ‘CD’. An injunction was first refused by Cranston J but then granted by the Court of Appeal. In April the Defendant NGN asked the Court of Appeal to re-visit that decision in the light of the story of PJS’s sexual activities having published in a magazine in the US, and subsequently in publications in the USA, Canada, Scotland, and on the internet. The Court of Appeal decided that the injunction should be discharged as, given the publicity, PJS was no longer likely to obtain a permanent injunction at trial. However, it left the injunction in place to allow PJS to appeal to the Supreme Court.
The Supreme Court found that the Court of Appeal had erred by directing itself that section 12 Human Rights Act 1998 gave enhanced weight to Article 10 ECHR – neither Article 10 (freedom of expression) and Article 8 (privacy) has preference over the other. The Court of Appeal had also erred in finding a “limited public interest” when previously it had found no public interest. There is no public interest, on its own, in kiss and tell stories, regardless of how famous the individual involved is.
The Supreme Court was careful to distinguish the confidence claim from the privacy claim. Whilst publicity may cause confidentiality to be lost, an injunction could still serve a useful purpose in preventing further intrusion into the private life of PJS and family. The distress and intrusion that would follow publication in the English newspapers and unrestricted internet reporting would be qualitatively different from that which had gone before.
The Supreme Court also looked at the IPSO Code noting the requirement for an “exceptional public interest” to override the normally paramount interests of children.
An injunction, the Supreme Court said, was the only remedy of value here, damages would not be adequate.
The majority concluded that PJS was likely to obtain a permanent injunction at trial notwithstanding overseas and internet publication, given that the proposed publication was a serious breach of the privacy rights of PJS and family, with no countervailing public interest.
The Supreme Court judgment and press summary can be found here.
A full 5RB case report can be found here.
The Guardian – Supreme Court upholds ‘celebrity threesome’ injunction