Freedom of Expression v Right to Privacy or ‘kiss and don’t tell’

Earlier this year, the Sun on Sunday newspaper published a ‘kiss and tell’ story about a person in the entertainment business (PJS). You can read about editor, Charles’s views on the case in light of Article 6 (right to a fair trial) here, as well as editor, Katie’s reflections on the case. Two people, AB and CD, had approached the editor of that newspaper with a salacious story about PJS. PJS is married to YMA, a well-known entertainer. They have young children.

The story told of an extra marital sexual relationship between PJS and AB, which went on to include CD, AB’s partner, in a three-way sexual encounter. The editor of the Sun on Sunday notified PJS that he proposed publishing the story. PJS issued proceedings in the High Court to prevent publication; claiming the story breached his right to privacy under Article 8 of the European Convention on Human Rights (ECHR). He applied for an interim (previously known as interlocutory) injunction to prevent publication pending those legal proceedings.

PJS’s application for an interim injunction required the court to balance PJS’s Article 8 right to privacy with that of the News Group Newspaper’s (NGN) – owners of the Sun on Sunday – right to freedom of expression under Article 10 of the same ECHR. In determining whether to grant an interim injunction (or relief) the court must have regard to section 12 of the Human Rights Act 1998 (HRA):

12 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.

(5) In this section—

“court” includes a tribunal; and

“relief” includes any remedy or order (other than in criminal proceedings).

So in the first instance, under section 3, the court must be satisfied that the person seeking an interim injunction would be likely to obtain a permanent injunction after a full court hearing. At section 4, the court must have particular regard to the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). If the material is of a journalistic nature, as this story was, then regard must be given to the extent to which the material has become available to the public and whether there is a public interest in publishing the story.

Initially, the High Court refused to grant an interim injunction. However, the Court of Appeal allowed an appeal and restrained NGN from publishing the story until such time as the court could determine whether to grant a permanent injunction. During this time AB had the story published in the USA, subsequently Canada and Scotland, both areas that do not come under the jurisdiction of the courts of England and Wales. Eventually, despite the continuing efforts of PJS’s solicitor to block known sources, the story began to circulate online and on social media.

A variety of newspapers highlighted that the banned information was available to people in the US, other countries and online, and that such injunctions brought the system into disrepute, particularly as one tabloid reported at least 20 per cent of the public already knew the identities of PJS and YMA. As a consequence of the growing and continuing interest in the story by members of the public and on the basis the information was no longer confidential, NGN sought to overturn the injunction in the Court of Appeal. They were successful.

NGN was successful because the Court of Appeal accepted the argument that the story was no longer confidential, the damage any injunction was to prevent had been done. Furthermore, on that basis PJS would be unlikely to obtain a permanent injunction taking away any justification for an interim injunction. The Court also held that section 12 of the HRA gave greater weight to the right to Freedom of Expression than that of the Right to Privacy and Family Life, under Article 8 of the ECHR. PJS was given leave to appeal to the Supreme Court on the matter of whether the Court of Appeal had been correct in discharging the injunction.

The Supreme Court by a majority of 4 – 1 restored the injunction pending a trial. It gave the following reasons for its judgement:

1. There must be a balance struck between ECHR’s Article 10 Freedom of Expression and Article 8 Right to Privacy and Family Life. Contrary to the opinion of the Court of Appeal, section 12 of the HRA did not require greater weight to be given to freedom of expression.

2. There is no public interest, in a legal sense, in publishing the story of someone’s private sexual encounters, no matter how interested the public may be in the sex lives of the famous.

3. It is essential to distinguish between claims for breach of privacy and those for breach of confidentiality. PJS may well fail to obtain a permanent injunction if his claim was based on breach of confidentiality alone. However, different considerations apply to claims for breach of privacy where further disclosure may cause additional distress. There is a further distinction to be made between the types of publication and the qualitative difference in intrusiveness and distress likely following publication in the English media. In this regard the court should give consideration to the rights of PJS and YMA’s children. Especially given the IPSO Editors’ Code of Practice requirement that 'An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.'

4. The central issue in granting an interim injunction is whether a trial judge is likely to grant a permanent injunction. The majority of the Court concludes that PJS is likely to establish at trial that the publication by NGN constitutes a serious breach of his family’s privacy rights with no public interest argument, at present, to override them.

While interest in the story may have receded since it broke in the spring of this year, it is likely curiosity in the identity of PJS and his spouse will be reignited if the case of PJS v NGN Limited finally comes to trial. Either way, it seems probable that, in this instance, privacy will trump freedom of expression.