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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> PJS v News Group Newspapers Ltd (Rev 1) [2016] UKSC 26 (19 May 2016)
URL: http://www.bailii.org/uk/cases/UKSC/2016/26.html
Cite as: [2016] FSR 33, [2016] HRLR 13, [2016] Fam Law 963, [2016] EMLR 21, [2016] UKSC 26, [2016] 4 All ER 554, [2016] WLR(D) 272, [2016] 2 WLR 1253, [2016] 2 FLR 251, [2016] 1 AC 1081, [2016] AC 1081
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[2016] UKSC 26
On appeal from: [2016] EWCA Civ 393
JUDGMENT
PJS (Appellant) v News Group Newspapers Ltd (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
19 May 2016
Heard on 21 April 2016
|
Appellant Desmond Browne QC David Sherborne Adam Speker Lorna Skinner (Instructed by Carter-Ruck) |
|
Respondent Gavin Millar QC Ben Silverstone (Instructed by Simons Muirhead & Burton Solicitors) |
LORD MANCE: (with whom Lord Neuberger, Lady Hale and Lord Reed agree)
Introduction
3. The Court is well aware of the lesson which King Canute gave his courtiers. Unlike Canute, the courts can take steps to enforce its injunction pending trial. As to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid. Nor is the law one-sided; on setting aside John Wilkes’ outlawry for publishing The North Briton, Lord Mansfield said that the law must be applied even if the heavens fell: R v Wilkes (1768) 4 Burr 2527, 98 ER 327 (347). It is unlikely that the heavens will fall at our decision. It will simply give the appellant, his partner and their young children a measure of temporary protection against further and repeated invasions of privacy pending a full trial which will not have been rendered substantially irrelevant by disclosure of relatively ancient sexual history.
The facts
6. Cranston J refused an interim injunction on 15 January, but the Court of Appeal (Jackson and King LJJ) on 22 January 2016 allowed an appeal and restrained publication of the relevant names and of details of their relationship: [2016] EWCA Civ 100. The Court provided the parties with its full judgment, but published only a redacted version omitting the names and details.
10. On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction granted on 22 January 2016, on the grounds that the protected information was now in the public domain, and that the injunction therefore served no useful purpose and was an unjustified interference with NGN’s own rights under article 10 of the European Convention on Human Rights (“ECHR”). By a judgment published in slightly redacted terms on 18 April 2016, the Court of Appeal (Jackson, King and Simon LJJ) discharged the injunction: [2016] EWCA Civ 393. On 21 April 2016 the Supreme Court heard the appellant’s application for permission to appeal together with submissions relevant to the appeal, if permission was granted, and continued the interim injunction pending the delivery of the present judgment.
The statutory provisions
“Article 8
Right to respect for private and family life.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10
Freedom of expression.
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“Freedom of expression.
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied -
a. that the applicant has taken all practicable steps to notify the respondent; or
b. that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
a. the extent to which -
i. the material has, or is about to, become available to the public; or
ii. it is, or would be, in the public interest for the material to be published;
b. any relevant privacy code.”
Cranston J’s decision
13. When refusing an injunction on 15 January 2016, Cranston J:
(i) accepted that the appellant had a reasonable expectation that his sexual activities would remain private,
(ii) added that he was “especially troubled” by the children’s privacy interests under ECHR article 8, though these could not operate as a “trump card”,
(iii) rejected the respondent’s suggestion that the proposed publication went to any relevant matter of “public debate”,
(iv) identified the appellant and his partner as portraying an image to the world of a committed relationship, accepted that “commitment may not entail monogamy”, but concluded that there was a public interest in correcting the image by disclosing that the appellant had engaged in the sort of casual sexual relationships demonstrated by the evidence, and
(v) on that basis, and noting that the threshold test for granting an interim injunction was in this context higher than the generally applicable test in American Cyanamid Co v Ethicon Ltd [1975] AC 396, refused an injunction.
The Court of Appeal judgment of 22 January 2016
(i) although the judge had correctly identified the children’s article 8 privacy rights, he had not explained how he had taken them into account;
(ii) once it was accepted that “commitment may not entail monogamy”, there was no false image to require correction by disclosure of the appellant’s occasional sexual encounters with others. In this connection, the Court of Appeal concluded positively that on the evidence before it the image presented by the appellant and his partner had been one of commitment not monogamy.
16. There was a respondents’ notice alleging additional grounds for upholding the judge’s decision. In this connection, the Court of Appeal agreed with the judge that the proposed publication did not go to any matter of public debate: para 12(iii) above. Referring to Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808, which itself refers back to Terry v Persons Unknown [2010] EWHC 119 (QB), the Court accepted that the respondents were entitled to publish articles critical of people in the public eye, even though there was nothing illegal about their conduct. But it noted that the appellant had an expectation that his sexual encounters would remain private, that the proposed story would, if published, be “devastating” for him and that on any proper balancing his article 8 right to privacy must prevail over the respondents’ article 10 right to publish an account of the adultery. It added that the position of the children was also a factor to consider: the proposed article would generate a media storm and much public interest in the appellant’s family, including increased press attention to the children, meaning that the children would in due course learn about the relevant matters from school friends and the internet. On the evidence before the Court, the appellant was likely to establish at trial that publication should not be allowed, and had therefore satisfied the test in section 12(3) of the Human Rights Act 1998. The appeal was therefore allowed and an injunction granted.
The Court of Appeal judgment of 18 April 2016
(i) accepted that claims based on confidentiality were to be distinguished from claims based on privacy, in that, while “claims for confidentiality generally fail once information has passed into the public domain”, the law “extends greater protection to privacy rights than rights in relation to confidential material” (paras 35-36);
(ii) concluded that “a claim for misuse of private information can and often will survive when information is in the public domain”, continuing (para 39):
“It depends on how widely known the relevant facts are. In many situations the claim for misuse of private information survives, but is diminished because that which the defendant publishes is already known to many readers. The publication is an invasion of privacy and hurtful for the claimant, but is not as egregious as it would otherwise be. That does not deprive the claimant of his claim for damages, but it weakens his claim for an injunction. This is for two reasons. First, the article 8 claim carries less weight, when the court carries out the balancing exercise of article 8 rights as against article 10 rights. Secondly, injunctions are a discretionary remedy. The fact that material is generally known is relevant to the exercise of the court’s discretion.”
(iii) added that:
“40. In this regard it is important to note that HRA section 12 does not affect the existence of the claimant’s article 8 claim nor does it provide any defence to the tort of misusing private information. The effect of section 12 is twofold. First, it enhances the weight which article 10 rights carry in the balancing exercise. Secondly, it raises the hurdle which the claimant must overcome in order to obtain an interim injunction.
41. Although it will be a matter for the trial judge at the end of the day, I adhere to the view I expressed in January, namely that the story which NGN proposes to publish is likely to be a breach of the claimant’s article 8 rights. What has changed is the weight which the claimant’s article 8 rights carry, when balanced against NGN’s article 10 rights. Also the fact that material is widely known must be relevant to the court’s discretion.”
(iv) accepted that “the court should not set aside an injunction merely because it has met with widespread disobedience or defiance” (para 42), but noted that this was not a case of disobedience by the media, and that the difficulty about any submission of defiance was that “the Internet and social networking have a life of their own”; furthermore, that an English court “has little control over what foreign newspapers and magazines may publish” (para 44); and that “it does appear that those who want to find out the individuals’ identities have already done so” (para 45).
18. In these circumstances, the Court concluded, in Jackson LJ’s words, that
“47. In the situation which now prevails, I still think that the claimant is likely to establish a breach of ECHR article 8. But, notwithstanding the limited public interest in the proposed story, I do not think that the claimant is ‘likely’ to obtain a permanent injunction. I reach this conclusion for seven reasons:
i) Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost.
ii) Much of the harm which the injunction was intended to prevent has already occurred. The relatives, friends and business contacts of PJS and YMA all know perfectly well what it is alleged that PJS has been doing. The ‘wall-to-wall excoriation’ which the claimant fears (CTB at 24) has been taking place for the last two weeks in the English press. There have been numerous headlines such as ‘celebrity love cheat’ and ‘Gag celeb couple alleged to have had a threesome’. Many readers know to whom that refers.
iii) The material which NGN wishes to publish is still private, in the sense that it concerns intimate sexual matters. I reject Mr Millar’s submission that PJS’s article 8 rights are no longer engaged at all. First, there are still many people, like Mr Browne’s hypothetical purchaser of the Financial Times, who do not know about PJS’s sex life. Secondly, NGN’s planned publication in England will be a further unwelcome intrusion into the private lives of PJS and his family. On the other hand, it will not be a shock revelation, as publication in January would have been. The intrusion into the private lives of PJS and his family will be an increase of what they are suffering already.
iv) If the interim injunction stands, newspaper articles will continue to appear re-cycling the contents of the redacted judgment and calling upon PJS to identify himself. Websites discussing the story will continue to pop up. As one is taken down, another will appear. This process will continue up to the trial date.
v) As stated in para 59 of the previous redacted judgment (para 61 of the full judgment), NGN is entitled to publish articles criticising people in the public eye. Therefore it has an article 10 right to publish an account of PJS’s conduct. That article 10 right has to be balanced against PJS’s article 8 right for his sexual liaisons to remain a private matter. The need to balance article 8 rights against article 10 rights means that there is a limit to how far the courts can protect individuals against the consequences of their own actions.
vi) As a result of recent events, the weight attaching to the claimant’s article 8 right to privacy has reduced. It cannot now be said that when the day of trial comes, PJS’s article 8 right is likely to prevail over NGN’s article 10 right to freedom of expression, such as to warrant the imposition of a permanent injunction.
vii) Finally, the court should not make orders which are ineffective. It is in my view inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge. This must be relevant to the exercise of the court's discretion. Injunctions are a discretionary remedy.
48. I turn next to the position of YMA and the children. As explained in para 39 of my previous judgment, the interests of other family members, in particular children, are a significant consideration, but they cannot be a trump card. Paragraph 61 of the redacted judgment (para 63 of the full judgment) referred to the likelihood that, in the absence of an injunction, the children would in the future learn about these matters from school friends or the Internet. That is now a less material consideration. In my view, whether or not the court grants an injunction, it is inevitable that the two children will in due course learn about these matters.”
Analysis of the Court of Appeal’s judgment of 18 April 2016
(i) HRA section 12
19. There is, as all members of the Supreme Court conclude, a clear error of law in the Court of Appeal’s reasoning in relation to section 12. For reasons given in para 20 below, it consists in the self-direction that section 12 “enhances the weight which article 10 rights carry in the balancing exercise” (para 40). The Court of Appeal’s further self-direction, that section 12 “raises the hurdle which the claimant must overcome in order to obtain an interim injunction” is unexceptionable, in so far as section 12 replaces the general American Cyanamid test, focused on the balance of convenience, with a test of whether the appellant is “likely to establish that publication should not be allowed” at trial. The position was stated more particularly by Lord Nicholls said in Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 AC 253, para 22, in a speech with which the other members of the House agreed:
“Section 12(3) makes the likelihood of success at trial an essential element in the court’s consideration of whether to make an interim order. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”
20. The Court of Appeal’s initial self-direction is however contrary to considerable authority, including authority at the highest level, which establishes that, even at the interlocutory stage, (i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the Court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), para 28, per Eady J, describing this as a “very well established” methodology. The exercise of balancing article 8 and article 10 rights has been described as “analogous to the exercise of a discretion”: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, para 8). While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention. The Court of Appeal’s error in its initial self-direction is, however, one of potential significance, since it necessarily affects the balance. By itself it would require the Supreme Court to re-exercise the discretion which the Court of Appeal exercised in setting aside the injunction which it had previously granted. But there are further aspects of the Court of Appeal’s treatment of the issues which together lead to the same conclusion.
(ii) The reference to a “limited public interest”
22. That criticism of supposed infidelity cannot be the guise under which the media can disclose kiss and tell stories of no public interest in a legal sense is confirmed by a series of European Court of Human Rights (“ECtHR”) judgments. Thus, in Armonienė v Lithuania [2009] EMLR 7, para 39, the Court emphasised the duty of the press to impart information and ideas on matters of public interest, but noted that
“a fundamental distinction needs to be made between reporting facts - even if controversial - capable of contributing to a debate in a democratic society and making tawdry allegations about an individual’s private life”;
In Mosley v United Kingdom [2012] EMLR 1, para 114, the Court reiterated that
“there is a distinction to be drawn between reporting facts - even if controversial - capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life (see Armonienė, para 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a ‘public watchdog’ are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life (Von Hannover v Germany (2005) 40 EHRR 1, para 65; Hachette Filipacchi Associés (ICI PARIS) v France, no 12268/03, para 40; and MGN Ltd v United Kingdom (2011) 53 EHRR 5, para 143). Such reporting does not attract the robust protection of article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v France (dec), nos 66910/01, [2003] ECHR 715, and 71612/01, 1 July 2003; Von Hannover, cited above, para 66; Leempoel & SA E Ciné Revue v Belgium, no 64772/01, [2006] ECHR 2002, para 77, 9 November 2006; Hachette Filipacchi Associés (ICI PARIS), cited above, para 40; and MGN Ltd, cited above, para 143.”
23. Most recently, in Couderc and Hachette Filipacchi Associés v France (Application No 40454/07, [2015] ECHR 992 ), paras 100-101, the Court said:
“100. The Court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Von Hannover, cited above, para 65; MGN Ltd v United Kingdom, no 39401/04, [2011] ECHR 66, para 143, 18 January 2011; and Alkaya v Turkey, no. 42811/06, [2012] ECHR 1790, para 35, 9 October 2012).
101. Thus, an article about the alleged extra-marital relationships of high-profile public figures who were senior State officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership (see Standard Verlags GmbH v Austria (No 2), no 21277/05, [2009] ECHR 853, para 52, 4 June 2009). Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership (see Von Hannover, cited above, para 65, with further references). The Court reiterates in this connection that the public interest cannot be reduced to the public’s thirst for information about the private life of others, or to the reader’s wish for sensationalism or even voyeurism.”
(iii) The distinction between rights of confidence and privacy rights
25. Mr Desmond Browne QC for the appellant submits the Court of Appeal also erred by too close an assimilation of a claim based on the tort of invasion of privacy with breach of confidence. Jackson LJ recognised, correctly, that the former attracts greater protection than the latter (para 36 of his judgment: see para 17(i) above). But he went on in para 39 to suggest that, whether a claim for misuse of private information will survive when information is in the public domain “depends on how widely known the relevant facts are”. That suggests a quantitative test, measuring what has already been disclosed with what is yet undisclosed. That is a test which is not only appropriate but potentially decisive in the context of an application based on confidentiality, as witnessed famously by Sunday Times v United Kingdom (No 2) (“Spycatcher No 2”) (1992) 14 EHRR 229, paras 54-55. There, the loss of secrecy by 30 July 1987 was central to the European Court of Human Rights’ conclusion that injunctions could after that date no longer be justified either as necessary to ensure a fair trial or to protect national security. The promotion of the efficiency and reputation of the Security Service constituted insufficient justification.
26. However, different considerations apply to the present privacy claim. First, as Mr Browne submits, a quantitative approach overlooks the invasiveness and distress involved, even in repetition of private material. Second, open hard copy exposure, as well no doubt as further internet exposure, is likely to add significantly to the overall intrusiveness and distress involved. I return to the second point in paras 34-37 below. As to the first point, there is substantial recent authority recognising that even “the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person but also of those who are involved with him”: JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB), para 59, per Tugendhat J. The Court of Appeal referred (in para 25) to the submission which Mr Browne made before it to like effect, and to the supporting authority which he cited, but did not, Mr Browne submits, give effect to it in its decision. The point made in JIH is worth elaborating for its resonance on this appeal. It can be traced back to Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 260F, where Lord Keith gave examples of circumstances in which a person could be entitled to restrain disclosure of private information, which had received widespread publication abroad. It was taken up by Eady J in McKennitt v Ash [2006] EMLR 10, para 81, by Tugendhat J in Green Corns Ltd v Claverley Group Ltd [2005] EMLR 748, paras 78-79, where he said that the question was not whether information was generally accessible, but rather whether an injunction would serve a useful purpose and by Briggs J in Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), paras 22-26, where he also said that HRA section 12(4)(a)(i) in his judgment “creates no separate or different test …, at least where … there is no suggestion that the material is about to become available to the public”.
27. Eady J and Tugendhat J have since further elaborated the significance of the principle in successive judgments in CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) and 1334 (QB). In CTB, as in the present case, an interim injunction had been granted to restrain disclosure of information about an alleged sexual relationship. In CTB the claimant was a well-known footballer who was married and had a family. In the five or so weeks after the injunction was granted, substantial information, from sources which could not be attributed to the defendant, became available on Twitter and the internet generally identifying or pointing towards the footballer. The defendants argued in effect that privacy injunctions (and no doubt other forms of injunction also) had ceased to serve any useful purpose in an age when information could be put out on various networks within or outside this jurisdiction by persons other than the immediate defendant.
28. More specifically, the defendants in CTB also placed reliance on Eady J’s refusal of an injunction to Mr Max Mosley in Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB). Eady J had there said that:
“The court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the court to make vain gestures.”
In CTB Eady J explained why this statement did not cover the circumstances in CTB:
“18. The circumstances here are rather different. In Mosley, I took the view that there was no point in granting an injunction because, even before the application was made, several hundred thousand people had seen the intimate video footage which NGN had put on line - conduct that was recently characterised by the ECtHR as a ‘flagrant and unjustified intrusion’: Mosley v UK (Application No 48009/08), 10 May 2011 at 104. In a real sense, therefore, it could be said that there was nothing left for the court to protect by an injunction.
19. Here, the Internet allegations prayed in aid by Mr Spearman took place after the order was made. Different policy considerations come into play when the court is invited to abandon the protection it has given a litigant on the basis of widespread attempts to render it ineffective. Furthermore, unlike the Mosley case, there is no doubt other information that Ms Thomas could yet publish, quite apart from this claimant’s identity, which is not yet in the public domain. The injunction thus continues to serve a useful purpose, from the claimant’s point of view, for that reason alone, since she is amenable to the jurisdiction of the court. Otherwise, he would not seek to maintain it.
20. Mr Spearman’s application is therefore quite narrow. He seeks only to vary the injunction so as to permit the claimant to be identified. …”
In the circumstances, Eady J held that even identification should not be permitted. It will be apparent that the circumstances in CTB bore some relevant similarities to those of the present case. In particular, reliance was placed on internet disclosures subsequent to the original injunction in support of an application to set aside the injunction on the basis that it served no further useful protective purpose. This situation was distinguished in principle from that where an injunction is granted after substantial internet disclosure. The substantial internet disclosure which had occurred after the injunction was not regarded as justifying the lifting of the injunction. The injunction, enforceable against the defendant, was seen as continuing to serve a useful purpose.
“23. It is important always to remember that the modern law of privacy is not concerned solely with information or ‘secrets’: it is also concerned importantly with intrusion. … [That] also largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant: see eg McKennitt v Ash [2008] QB 73 at 80 and 87.
24. It is fairly obvious that wall-to-wall excoriation in national newspapers, whether tabloid or ‘broadsheet’, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment. Mr Tomlinson argues accordingly that ‘the dam has not burst’. For so long as the court is in a position to prevent some of that intrusion and distress, depending upon the individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down.
25 It may be thought that the wish of NGN to publish more about this ‘story’, with a view to selling newspapers and perhaps achieving other commercial advantages, demonstrates that coverage has not yet reached saturation point. Had it done so, the story would no longer retain any interest. This factor tends, therefore, to confirm my impression that the court's attempts to protect the claimant and his family have not yet become wholly futile.
26. In these circumstances, it seems to me that the right question for me to ask, in the light of JIH v News Group Newspapers Ltd [2011] 2 All ER 324 and In re Guardian News and Media Ltd [2010] UKSC 1, is whether there is a solid reason why the claimant’s identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity. The answer is as yet in the negative. They would be engulfed in a cruel and destructive media frenzy. Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I decline to do so. On the other side, …, it has not been suggested that there is any legitimate public interest in publishing the story.”
The analysis in these passages is both relevant and indeed largely transposable to the circumstances of the present appeal.
“3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.”
31. Tugendhat J’s reasoning in JIH and Eady J’s reasoning in CTB were cited with approval by MacDonald J in H v A (No 2) [2015] EWHC 2630 (Fam), para 47. In so far as it is likely that the respondents in the present case would wish to accompany any stories with pictures of the relevant individuals, it is also consistent with the Leveson Inquiry Report’s conclusion (para 3.4) that:
“There is a qualitative difference between photographs being available online and being displayed, or blazoned, on the front page of a newspaper such as the Sun. The fact of publication in a mass circulation newspaper multiplies and magnifies the intrusion, not simply because more people will be viewing the images, but also because more people will be talking about them. Thus, the fact of publication inflates the apparent newsworthiness of the photographs by placing them more firmly within the public domain and at the top of the news agenda.”
(i) the extent to which the material has, or is about to, become available to the public and
(ii) the extent to which it is, or would be, in the public interest for the material to be published.
Under section 12(4)(b), the courts must also have particular regard to any relevant privacy code.
a) the nature of the journalistic material involved and the medium in which it is, or is to be, expressed, and
b) the extent to which it is already available in that medium and the extent to which steps are being or can be taken to remove or limit access to any other publication in that or any other medium.
In short, the question whether material has, or is about to, become available to the public should be considered with reference to, inter alia, the medium and form in relation to which injunctive relief is sought.
36. As to section 12(4)(b), this is of particular relevance in relation to the appellant’s and his partner’s children. The respondents subscribe to the Independent Press Standards Organisation (“IPSO”), whose Editors’ Code of Practice of January 2016 provides that “Everyone is entitled to respect for his or her private and family life” and that editors “will be expected to justify intrusions into any individual’s private life without consent” (clause 3(i) and (ii)). The Code notes that there can be exceptions in the public interest, emphasising however that “editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of [children under 16])”. The last point echoes the thinking in article 3(1) of the United Nations Convention on the Rights of the Child (providing that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”) which has in turn informed the ECtHR’s and United Kingdom courts understanding of ECHR article 8: see eg ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, H v Lord Advocate 2012 SC (UKSC) 308, H (H) v Deputy Prosecutor of the Italian Republic (Genoa) [2013] 1 AC 338 and Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690.
(iv) An effective remedy
39. By exercising its discretion so as to discharge the injunction, Mr Browne submits, the Court of Appeal failed to ensure that the appellant’s privacy rights were “practical and effective”: Von Hannover v Germany, para 40, Armonienė v Lithuania, para 38. The submission must, however, be approached with caution at a European level, because in Mosley v United Kingdom [2012] 2012] EMLR 1, para 120, the ECtHR (when considering whether the Convention required the media, before publishing potentially private material, to inform the subject of such material) observed that
“in its examination to date of the measures in place at domestic level to protect article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of article 8 rights arising from the publication by a newspaper of private information.”
The ECtHR went on to explain Armonienė v Lithuania as a case where damages had not provided an adequate remedy, because of the “derisory sum” that had been awarded.
40. On the other hand, in Mosley v United Kingdom the ECtHR was primarily engaged in delimiting the scope of ECHR rights, particularly with regard to pre-notification, at a European level. It was not excluding the possibility of or justification for a prior restraint on publication in appropriate cases at a domestic level. Indeed, it upheld such a prior restraint in Editions Plon v France (2006) 42 EHRR 36. Further, it said this in Mosley (para 117):
“117. Finally, the Court has emphasised that while article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v United Kingdom (26 November 1991, (1992) 14 EHRR 153, para 60). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.”
In the present case, it can be said that there is no urgency about any publication, as well as no evident contribution to any debate of general public interest.
41. At a domestic level, the Court of Appeal has itself also recognised that the refusal of an interlocutory injunction can operate as “a strong potential disincentive to respect for aspects of private life” and that, depending on the circumstances, it may only be by the grant of such an injunction that privacy rights can be satisfactorily protected: Douglas v Hello! Ltd (No 3) [2006] QB 125, paras 257 and 259; and that such an injunction may be “the only remedy which is of any value”: A v B plc [2003] QB 195, para 11. Damage done by publication of a defamatory statement can be redressed by a public finding at trial that the allegation was false, but an invasion of privacy cannot be cured in a similar way, and for that reason there may never be a trial, whatever damages might be recoverable. These points are also recognised in the academic writing: see eg Freedom of Speech (OUP, 2006), by Professor Eric Barendt, p 137 and Privacy and Press Freedom (Blackstone, 1995), by Professor Raymond Wacks, p 156.
42. Mr Browne further notes, with reference to the first instance decision of Mosley v News Group Newspapers [2008] EMLR 20, that it has been held at first instance that exemplary or punitive damages are not recoverable at common law for misuse of private information. On the other hand, the contrary remains open to argument at higher levels, and whether an account of profits might be claimed is likewise open. (In future, there may be a statutory possibility of obtaining an award of exemplary damages against a publisher not a member of an approved regulator; that is under sections 34-36 of the Crime and Courts Act 2013, if a court were to be satisfied that the respondents’ conduct “has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”, that “the conduct is such that the court should punish the defendant for it” and that “other remedies would not be adequate to punish that conduct”. But no approved regulator at present exists, so that the section has no application to the present case.)
Conclusions
LORD NEUBERGER: (with whom Lady Hale, Lord Mance and Lord Reed agree)
The history in summary
48. NGN resisted both the proceedings and the grant of the interlocutory injunction on the ground that the public interest in freedom of expression and in the story being published outweighed any privacy rights enjoyed by PJS. Cranston J decided that NGN were right and refused PJS an interlocutory injunction (but granted one very temporarily to enable PJS to appeal). PJS appealed to the Court of Appeal which on 22 January 2016, granted an interlocutory injunction for reasons given by Jackson LJ. In summary, he considered that PJS had a legally recognised expectation of privacy, that there was no public interest in the story being published, that PJS therefore had a strong case that publication of the story would infringe his legal rights, that such publication would be “devastating” for PJS, that there would be “increased press attention” paid to his children, and that “when this action comes to trial, [PJS] is likely to establish that publication should not be allowed” - [2016] EWCA Civ 100.
49. Thereafter, the story was published in a newspaper in the United States, in Canada and in Scotland, and it has been available to the public in England and Wales to the extent described by Lord Mance in paras 6-8 above. As a result, NGN applied to the Court of Appeal to lift the interlocutory injunction on the ground that the dissemination of the story since January 2016 meant that the information was now out in the public domain to such an extent that a permanent injunction would not be granted at trial, so that the interlocutory injunction should therefore be discharged. On 18 April 2016, the Court of Appeal, for reasons given by Jackson LJ, accepted that argument and discharged the interlocutory injunction - [2016] EWCA Civ 393. The Court of Appeal nonetheless stayed the discharge of the injunction for two days to enable PJS to apply to this Court. We decided to hear PJS’s application for permission to appeal to this Court together with the arguments which the parties wished to raise on any appeal, and to continue the stay until we had determined the application and any appeal.
Can this Court consider whether to continue the interlocutory injunction?
51. First, although he gave an impressive and careful judgment, Jackson LJ misdirected himself in an important respect when reaching the decision to discharge the interlocutory injunction which had been previously granted. Having rightly said that it was necessary to balance PJS’s right to respect for his private and family life against NGN’s right to freedom of his expression, he said that section 12 of the Human Rights Act “enhances the weight” to be given to the latter factor. However, that is not right. As Lord Steyn made clear in In re S (A Child) [2005] 1 AC 593, para 17, each right has equal potential force in principle, and the question is which way the balance falls in the light of the specific facts and considerations in a particular case. This was an error which entitles, indeed obliges, us to reconsider the question of discharging the interlocutory injunction.
52. Secondly, there is an argument that it was wrong to proceed on the basis that the story had what Jackson LJ described as “limited”, as opposed to no, “public interest”. Of course, there is always a public interest in anyone - particularly, some may think, the media - having the right to say what they want. As Jackson LJ rightly said in his first judgment in this case at para 55, “[freedom of expression is an important right for its own sake”; and that is recognised by section 12(4) of the Human Rights Act 1998, which provides that “[t]he court must have particular regard to the importance of the Convention right to freedom of expression”. However, following section 12(4)(a)(ii) of the 1998 Act, it appears to me that it was the public interest (as opposed to the interests of some members of the public) in the story being published which Jackson LJ was describing. In his earlier judgment in which he decided to grant the injunction, Jackson LJ decided that there was no public interest in the story being published (see [2016] EWCA Civ 100, para 53), and, as that finding has unsurprisingly not been appealed, it must be accepted, at least until trial. Having said that, I very much doubt that this factor would have been enough to persuade me that we could reconsider the question of continuing the interlocutory injunction, but, in the light of what I say in para 51 above and para 53 below, that is an academic point.
The continuation of the interlocutory injunction
54. It is therefore for this Court to decide whether or not to re-impose the interlocutory injunction, it appears to me that the central issue in that connection is whether the trial judge would be likely to grant a permanent injunction when this case comes to trial. Section 12(3) of the 1998 Act precludes the grant of an interlocutory injunction unless a permanent injunction is “likely” to be granted at trial; on the other side of things, it is hard to see why, in this case at least, an interlocutory injunction should not be granted (and, a fortiori, continued) if a permanent injunction is likely to be granted. In this context, the proper approach to likelihood is as set out by Lord Nicholls in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, para 22, which is set out by Lord Mance in para 19 above.
56. On that centrally relevant issue, it must be remembered that this is an application to discharge an interlocutory judgment before the trial of the action concerned. NGN’s case must therefore be that the interlocutory injunction should be revoked because of “some significant change of circumstances” since it was granted in January 2016 - Thevarajah v Riordan [2016] 1 WLR 76 para 18 citing Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1985] 1 WLR 485, 492-493. Accordingly, with the exception of the effects of the subsequent publicity referred to in para 55 above, the conclusions reached in the first judgment of the Court of Appeal must be assumed to be correct; in particular, it must be assumed that there is no public interest in publication of the story, and that, were it not for the publicity which has occurred since January 2016, it is likely that a permanent injunction would be granted.
58. However, claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone. As Tugendhat J said in Goodwin v News Group Newspapers Ltd [2011] EMLR 27, para 85, “[t]he right to respect for private life embraces more than one concept”. He went on to cite with approval a passage written by Dr Moreham in Law of Privacy and the Media (2nd ed (2011), edited by Warby, Moreham and Christie), in which she summarised “the two core components of the rights to privacy” as “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space” - what Tugendhat J characterised as “confidentiality” and “intrusion”.
59. Tugendhat J then went on to identify a number of cases where “intrusion had been relied on by judges to justify the grant of an injunction despite a significant loss of confidentiality”, namely Blair v Associated Newspapers Ltd (10 March 2000, Morland J), West v BBC (10 June 2002, Ouseley J), McKennitt v Ash [2006] EMLR 10, para 81 (Eady J), X & Y v Persons Unknown [2007] EMLR 290, para 64 (Eady J), JIH v News Group Newspapers Ltd [2011] EMLR 9, paras 58-59 (Tugendhat J), TSE v News Group Newspapers Ltd [2011] EWHC 1308 (QB), paras 29-30 (Tugendhat J) and CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB), para 23 (Eady J), to which can be added CTB v News Group Newspapers Ltd [2011] EWHC 1334 (QB), para 3 (Tugendhat J), Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), para 25 (Briggs J), and H v A (No 2) [2015] EWHC 2630 (Fam), paras 66-69 (MacDonald J).
60. Perusal of those decisions establishes that there is a clear, principled and consistent approach at first instance when it comes to balancing the media’s freedom of expression and an individual’s rights in respect of confidentiality and intrusion. There has been not even a hint of disapproval of that approach by the Court of Appeal (although it considered appeals in McKennitt [2008] QB 73 and JIH [2011] 1 WLR 1645). Indeed, unsurprisingly, there has been no argument that we should take the opportunity to overrule or depart from them. Accordingly, it seems to me that it is appropriate for this Court to adhere to the approach in those cases. Not only do they demonstrate a clear and consistent approach, but they are decisions of judges who are highly respected, and, at least in the main, highly experienced in the field of media law and practice; and they were mostly decided at a time when access to the internet was easily available to the great majority of people in the United Kingdom.
61. The significance of intrusion, as opposed to confidentiality, in these decisions was well explained in the judgment of Eady J in CTB [2011] EWHC 1326 (QB), where he refused an application by a newspaper to vary an interlocutory injunction because of what he referred to as “widespread coverage on the Internet”. At para 24 he said that “[i]t is fairly obvious that wall-to-wall excoriation in national newspapers … is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up”. As he went on to say in the next paragraph of his judgment, in a case such as this, “[f]or so long as the court is in a position to prevent some of that intrusion and distress, depending upon the individual circumstances, it may be appropriate to maintain that degree of protection”.
62. The same approach was taken by Tugendhat J in a later judgment in the same case, CTB [2011] EWHC 1334 (QB), when refusing a further application to lift the interlocutory injunction after the applicant’s name had been mentioned in the House of Commons. At para 3, having accepted that it was “obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose”, he said that “in so far as its purpose is to prevent intrusion or harassment, it has not failed”. Indeed, he regarded the fact that “tens of thousands of people have named the claimant on the internet” as confirming, rather than undermining, the argument that “the claimant and his family need protection from intrusion into their private and family life”.
63. It also seems to me that if there was no injunction in this case, there would be greater intrusion on the lives of PJS and YMA through the internet. There may well be room for different views as to whether the lifting of the injunction would lead to an increase or a decrease in tweets and other electronic communications relating to the story. However, if the identity of PJS and the story could be communicated within England and Wales, then it would be likely that anyone in this jurisdiction who was searching for PJS (or indeed YMA) through a search engine, for reasons wholly unconnected with the story, would find prominent links to that story. But if search engines serving England and Wales are geo-blocked from mentioning PJS, or indeed YMA, in connection with the story, as they should be so long as an injunction is in place, this would not happen. It might be said that PJS and YMA could ask the search engine operators to remove any links to the story pursuant to the decision of the Court of Justice in Google Spain SL v Agencia Espańola de Protección de Datos (Case C-131/12) [2014] QB 1022, but it seems unlikely that the reasoning in that case could apply to a story which has only recently become public and is being currently covered in the newspapers.
Concluding remarks
LADY HALE: (with whom Lord Neuberger, Lord Mance and Lord Reed agree)
78. In the leading case of In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, very careful consideration was given, at first instance, in the Court of Appeal and in the House of Lords, to balancing the public interest in publishing the name of a woman accused of murdering her child against the welfare interests of her surviving child who was living with his father. The public interest, in the legal sense, of publication was very strong. There was expert evidence of the welfare interests of the surviving child. It could not be more different from this case. As Lord Mance has demonstrated, there is no public interest in the legal sense in the publication of this information. There is no expert evidence of the interests of these children. These are all matters which should be properly argued at trial, not pre-empted by premature disclosure.
LORD TOULSON: (dissenting)
88. It is well recognised that repeated publication of private (and especially intimate) photos may properly be prevented by injunction, because the original publication does not necessarily reduce the intrusion caused by re-publication. In Douglas v Hello! Ltd (No 3) [2006] QB 125, para 105, the Court of Appeal explained that insofar as a photograph does more than convey information, and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph, or even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it. The court gave the example of a photograph taken with a telescopic lens of a film star lying naked by a swimming pool. In the present case what is sought to be restrained is the publication of facts of which there has already been widespread disclosure. Once facts are widely known, the legal landscape changes. In my view the court needs to be very cautious about granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law by giving the appearance of being out of touch with reality.
92. Lord Mance has said that the effect of lifting the injunction will be largely to undermine the purpose of any trial, which will be rendered irrelevant. I would make two observations. First, while adequacy of damages as a remedy is a reason to refuse an injunction, you cannot turn the argument on its head and say that inadequacy of damages is a positive reason to grant an otherwise inappropriate injunction. Secondly, I do not agree that the trial will be rendered irrelevant. As to damages, I would not regard Eady J’s decision in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB), [2008] EMLR 20, that exemplary damages cannot be awarded in an appropriate case for breach of privacy, as the final word on the subject. Proportionality is essential, but I would not rule out the possibility of the courts considering such an award to be necessary and proportionate in order to deter flagrant breaches of privacy and provide adequate protection for the person concerned.