PJS v News Group Newspapers Ltd [2016] UKSC 26

PJS, an entertainer in a same-sex marriage with children, sought to restrain publication of details of an extramarital threesome. Despite widespread internet and overseas disclosure, the Supreme Court reinstated the interim injunction, prioritising privacy and the children’s interests over press freedom.

Facts

PJS, a well-known figure in the entertainment industry, is married to YMA, also a prominent entertainer, and they have young children. Between 2009 and 2011, PJS had occasional sexual encounters with AB, culminating in a three-way sexual encounter with AB and AB’s partner CD in December 2011. In early 2016, AB and CD approached the editor of the Sun on Sunday with the story. PJS issued proceedings for breach of confidence and misuse of private information and sought an interim injunction.

Cranston J refused the injunction on 15 January 2016, but the Court of Appeal granted it on 22 January 2016. Subsequently, the story was published in the United States, Canada, and a Scottish newspaper, and spread via the internet and social media. On 18 April 2016, the Court of Appeal discharged the injunction on the basis that the information had entered the public domain. PJS appealed to the Supreme Court.

Issues

The principal issues were: (i) whether the interim injunction should be continued pending trial in light of widespread internet and overseas disclosure of the protected information; (ii) the proper application of section 12 of the Human Rights Act 1998 in balancing Article 8 (privacy) and Article 10 (freedom of expression) rights; and (iii) whether a claim for misuse of private information can survive once the information has entered the public domain, particularly when the intrusion element of privacy is engaged.

Arguments

Appellant (PJS)

Mr Desmond Browne QC argued that the Court of Appeal erred by treating Article 10 rights as enhanced by section 12 HRA, by recognising a ‘limited public interest’ in publication, by assimilating privacy too closely with confidentiality, and by failing to provide an effective remedy. He emphasised the qualitative difference between online dissemination and hard-copy publication in the English media, the distress and intrusion to PJS, his partner, and especially the children, and the inadequacy of damages.

Respondent (NGN)

Mr Gavin Millar QC contended that the protected information was now in the public domain to such an extent that the injunction served no useful purpose and constituted an unjustified interference with Article 10 rights. NGN maintained that PJS was unlikely to obtain a permanent injunction at trial.

Judgment

The majority (Lord Mance, with whom Lord Neuberger, Lady Hale and Lord Reed agreed) allowed the appeal and continued the interim injunction pending trial. Lord Toulson dissented.

Section 12 HRA

The Court held that the Court of Appeal misdirected itself in stating that section 12 ‘enhances the weight’ of Article 10 in the balancing exercise. Citing In re S (A Child) [2005] 1 AC 593 and Cream Holdings Ltd v Banerjee [2005] 1 AC 253, neither Article has automatic priority; the court must conduct an intense focus on the comparative importance of the rights in the individual case, considering justifications and proportionality.

Public interest

The Court rejected the Court of Appeal’s reference to a ‘limited public interest’ in the story. Citing ECtHR jurisprudence including Couderc and Hachette Filipacchi Associés v France, Mosley v United Kingdom, and Armonienė v Lithuania, the Court emphasised that kiss-and-tell stories satisfying public curiosity about private sexual encounters do not contribute to any debate of general interest and are at the bottom of the spectrum of Article 10 protection.

Confidentiality versus privacy/intrusion

The Court drew a critical distinction between confidentiality (which depends on secrecy) and privacy (which encompasses intrusion). Even where information is widely known, repeated and qualitatively different publication—particularly mass-circulation hard-copy publication in English newspapers—constitutes a fresh and intensified intrusion. The Court endorsed the line of authority including CTB v News Group Newspapers Ltd, JIH v News Group Newspapers Ltd, and Rocknroll v News Group Newspapers Ltd, recognising intrusion as a free-standing basis for protection.

The children’s interests

Lady Hale emphasised that the children possess independent privacy interests and a right to respect for family life. Section 12(4)(b) HRA required particular regard to the IPSO Editors’ Code, which requires an exceptional public interest to override the paramount interests of children under 16. The Court of Appeal had failed to give proper weight to the short-term risk of intrusive media attention and the qualitative difference between hard-copy and online exposure.

Effective remedy

Damages would be an inadequate remedy because invasion of privacy cannot be cured retrospectively. The Court noted that prior restraint may be more readily justified where there is no pressing need for immediate publication and no contribution to public debate.

Dissent

Lord Toulson would have dismissed the appeal, considering that the story’s confidentiality had become ‘so porous’ that maintaining the injunction would be unrealistic and risk public respect for the law. He doubted that publication in print would meaningfully add to the intrusion already occurring and emphasised that section 12(4)(a)(i) requires regard to general availability of the information regardless of medium.

Implications

The decision affirms that English privacy law protects against intrusion as well as misuse of confidential information, and that the two concepts are analytically distinct. Widespread dissemination of information online or abroad does not necessarily defeat a privacy claim where further publication in a different medium would constitute a qualitatively distinct intrusion.

The judgment clarifies that section 12 HRA does not confer enhanced weight on Article 10 rights and that the balancing exercise between Articles 8 and 10 remains neutral as to starting point, with intense focus required on the facts of each case. It confirms that ‘kiss and tell’ stories without genuine public interest in a legal sense attract weak Article 10 protection.

The decision is particularly significant for the protection of children’s privacy interests, requiring courts to consider their independent rights and the IPSO Code’s heightened protection. It is also notable for its insistence that the courts will not abandon injunctive relief merely because internet and social media dissemination makes enforcement imperfect; the courts will continue to grant such protection as is available, particularly against mainstream media publication.

The case carries practical significance for media organisations, claimants in privacy litigation, and their advisers, indicating that pre-trial injunctions remain viable even in the digital age where information has partially leaked. However, the majority acknowledged this area may require legislative attention and that perceptions of privacy may shift over time. The dissent flags the tension between legal principle and the realities of online dissemination, an issue likely to recur.

Verdict: Appeal allowed. The Supreme Court (by a majority of 4-1, Lord Toulson dissenting) granted permission to appeal, set aside the Court of Appeal’s decision of 18 April 2016 discharging the injunction, and continued the interim injunction granted on 22 January 2016 until trial or further order.

Source: PJS v News Group Newspapers Ltd [2016] UKSC 26