PJS v News Group Newspapers Ltd
 UKSC 26;  WLR (D) 272
2016 April 21; May 19
Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmon DPSC, Lord Mance , Lord Reed , Lord Toulson JJSC
Confidential information — Breach of confidence — Injunction — Claimant granted interim injunction restraining defendant from publishing story in England and Wales concerning claimant’s extra-marital sexual activities — Foreign and Scottish newspapers publishing story identifying claimant — Story also available on internet and social media websites — Defendant applying for injunction to be lifted on grounds that story now in public domain — Whether publication in public interest — Whether Convention right ti freedom of expression taking precedence once is story in public domain — Whether further publication by English media interfering with right to privacy — Human Rights Act 1998 (c 42), s 12, Sch 1, Pt 1 arts 8, 10
The claimant, who is in the entertainment business, was married to a well-known person in the same business and they had two young children. The claimant sought an interim injunction pending trial, restraining the defendant publishers of a national newspaper from publishing a story about the claimant’s alleged extra-marital sexual activities, on the ground that the proposed publication would be a breach of confidence and an invasion of the claimant’s privacy in violation of his rights guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The judge refused an interim injunction. In January 2016 the Court of Appeal allowed the claimant’s appeal on the grounds that the claimant had a legally recognised expectation of privacy, that there was no public interest in the story being published and that there was a strong likelihood that when the action came to trial the claimant would be able to establish that a permanent injunction should be granted. Accordingly the Court of Appeal granted an interim injunction restraining publication of the story and the names and details of the claimant and others involved. In April 2016 the story which the defendants had intended to publish, including the names of those involved, was published in the United States of America, followed by similar articles being published in Canada and in a Scottish newspaper. Details of the story, including names of those involved, then appeared on internet websites and in the social media. In April 2016 the defendant applied to the Court of Appeal to set aside the interim injunction granted in January on the grounds that the protected information was now in the public domain and therefore the interim injunction served no useful purpose and was an unjustified interference with the defendant’s right to freedom of expression guaranteed by article 10 of the Convention.
The Court of Appeal held that section 12 of the 1998 Act enhanced the weight to be given to article 10 rights in the balancing exercise, that much of the harm which the injunction had been intended to prevent had already occurred by the information now being in the public domain and that consequently the weight attaching to the claimant’s article 8 right to privacy had reduced, and that despite the “limited public interest” in the story the claimant was unlikely to obtain a permanent injunction. The Court of Appeal therefore discharged the interim injunction but continued it pending the claimant’s application to the Supreme Court for permission to appeal.
On the claimant’s application for permission to appeal—
Held, permission to appeal granted and (Lord Toulson JSC dissenting) appeal allowed, . The Court of Appeal had wrongly directed itself in regard to the enhanced weight to be attached to article 10 in the balancing exercise when applying section 12 of the 1998 Act. The case law clearly showed that even at an interlocutory stage neither article 8 nor article 10 had precedence over the other. There was no “limited public interest” in the story proposed to be published and the Court of Appeal had also misdirected itself in that regard. The media were entitled to criticise the conduct of individuals even if there were nothing illegal about it, but criticism of conduct could not be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which was of no public interest in the legal sense, however much it might interest the public. The mere reporting of sexual encounters of someone like the claimant, however well known to the public, with a view to criticising him, did not fall within the concept of freedom of expression under article 10 at all. When information was in the public domain the quantitative approach adopted by the Court of Appeal of measuring what had been disclosed with what was yet undisclosed overlooked the intrusiveness and distress involved in privacy claims even in the repetition of private material and that further exposure was likely to add to that distress. The Court of Appeal had focused too narrowly on the disclosures already made and had not given due weight to the qualitative difference and intrusiveness likely to be involved in what was now proposed by way of unrestricted publication by the English media. In view of the potential significance of the errors made by the Court of Appeal, the Supreme Court was required to re-exercise the discretion which the Court of Appeal had exercised in setting aside the injunction previously granted, and to express its own views. Every case had to be considered on its own particular facts but there was not, without more, any public interest in the legal sense in the disclosure or publication of purely private sexual encounters, even though they involved adultery or more than one person at the same time. Any such disclosure or publication would on the face of it constitute the tort of invasion of privacy and repetition of such a disclosure or publication on further occasions was capable of constituting a further tort of invasion of privacy even in relation to persons to whom disclosure or publication had previously been made, particularly if it occurred in a different medium. In considering whether an interim injunction should be granted to restrain an anticipated tortious invasion of privacy the court had to be satisfied under section 12 of the 1998 Act that the claimant was likely to establish at trial that the publication should not be allowed and that a permanent injunction should be granted. Where the proceedings related, as in the present case, to journalistic material, the court had to have particular regard to the extent to which the material became available to the public and whether it was in the public interest for it to be published. On the evidence presently available in the claimant’s case, there was effectively no public interest in the legal sense in further disclosure or publication. If the material were published by the English media it would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by the claimant, his partner, and by way of increased media attention now and/or in the future, their children (per Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC and Lord Mance JSC).
The children’s interests were likely to be affected by a breach of their parents’ privacy interests and the children had independent privacy interests of their own. They also had a right to respect for their family life with their parents and the current code for editors emphasised that an exceptional public interest had to be demonstrated to override the paramount interests of children. .At trial the court would be required by section 12(4) of the 1998 Act to consider carefully the nature and extent of the likely harm to the children’s interests which would result in the short, medium and longer terms from the publication of the information about one of their parents. Those were matters which should be properly argued at trial and not pre-empted by premature disclosure Having regard to the nature of the material sought to be published and the identity and financial circumstances of the claimant an award of damages would be an inadequate remedy. There was no public interest in any legal sense in the story, and the lifting of the interim injunction would involve significant additional intrusion into the privacy of the claimant his partner and their children. On a trial in the light of the present evidence a permanent injunction would be likely to be granted. Accordingly, the interim injunction would be continued until trial or further order.
Decision of the Court of Appeal  EWCA Civ 393 reversed.
Desmond Browne QC, David Sherborne, Adam Speker and Lorna Skinner (instructed by Carter-Ruck) for the claimant.
Gavin Millar QC and Ben Silverstone (instructed by Simons Muirhead & Burton) for the defendant.
Reported by: Shiranikha Herbert, Barrister