A complex sex tangle involving a celebrity and an injunction restraining publication of the details of it has sparked off a debate in the UK about the limits of privacy laws in the internet age.
By Ramesh Menon
Even the highest court of the land has limited jurisdiction that does not extend across the world. So, does a court injunction on the publication of a story that invades the right to privacy of a celebrity make any sense in the internet age? The story may be blocked in one particular country or a group of countries where the injunction is applicable but readers can access it readily from websites abroad which are free to run the story. The curious case of PJS (the celebrity in question) has sparked off debates in the UK on the right to privacy and the freedom of the press in the digital era.
Here are the broad contours of the case: About four years ago, PJS, who is in the entertainment business, had an extra-marital affair with a woman and later on with her and another woman in a threesome affair that was mutual. In January this year, one of the women (referred to as AB in the court case) decided to spill the story of this relationship to The Sun on Sunday, published by News Group Newspapers Ltd. The publication informed the celebrity that they were planning to run the story.
PJS immediately issued proceedings, claiming that the publication would breach his rights to privacy and confidentiality, protected by Article 8 of the European Convention on Human Rights. He applied for an interim injunction, to restrain publication pending the trial of his claim. He argued that the publication of the article would harm his family life, particularly his children.
A CASE OF PUBLIC INTEREST?
The celebrity wanted a court injunction on the publication of the story. In a case that has caused quite a flutter, the Supreme Court said that there was no public interest involved in naming the celebrity and revealing details of the private affair would breach his and his family’s privacy. Wanting to shield the celebrity and others involved, the court referred to him as PJS and his wife as YMA. They have two small children. The two women were referred to as AB and CD.
Lawyers of the celebrity argued that it would be an invasion of privacy if the newspaper ran the story of the three-way sexual encounter. However, the newspaper argued that there was a public interest in the story as it was about a celebrity couple who had weaved a public image of being devoted to each other. The newspaper group argued that the story was in public interest.
The case went to the Supreme Court in the UK which recently held that details of the extra-marital relationship could not be published as it would adversely affect his family and children. But it was a ruling that had limited jurisdiction. As the British law was not applicable in the US, Canada and Scotland, tabloids there published the story.
It was also all over the internet and social media. After all, websites that are administered outside the UK can be easily accessed by those living in the country. But the court ruled that if it was allowed in the UK, it would only lead to greater coverage. Naturally, this case mushroomed into a debate of whether such a court injunction meant anything in the digital age we live in. Legal experts in the UK were of the view that the ruling had created a de-facto privacy law in the UK by definitively placing the privacy of a celebrity above the public’s right to know.
The Supreme Court allowed the celebrity’s appeal by a majority of 4 to 1, with Lord Mance giving the leading judgment.
Lord Neuberger and Lady Hale gave supporting judgments, with Lord Reed agreeing. Lord Toulson chose to dissent, saying that the story was not going to go away despite the injunction.
UPHOLDING PRIVACY
Lord Mance in his judgment noted: “Publication of the story would infringe privacy rights of PJS, his partner and their children.… There is no public interest, however much it may be of interest to some members of the public in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But that does not apply here.”
He also added that The Independent Press Standards require editors to demonstrate an exceptional public interest to override the normally paramount interest of the celebrity’s children. Though Lord Mance agreed that the story was on the internet and social media, he underlined that spilling details in print publicly would endanger and destroy the privacy of the family, which included children. He also said that the story would attract intensive coverage if the injunction was lifted.
Victoria Newton, editor of The Sun on Sunday, said that the story was legitimate public interest journalism and the court ignored that it had been printed all over the world and published on blogs and social media which were easily accessible. She said: “We echo the dissenting Judge Lord Toulson’s opinion that ‘the court must live in the world as it is and not as it would like it to be’.”
The application filed by PJS required the court to balance the celebrity’s right under Article 8 with the newspaper’s right to freedom of expression under article 10 of the European Convention of Human Rights subject to Section 12 of the Human Rights Act 1998. Section 12(3) provides that an interim injunction can only be granted if a claimant is likely to establish at trial that publication should not be allowed. Section 12(4) provides that the court must have particular regard to the importance of freedom of expression and, in relation to journalistic material, to the extent to which the material has or is about to become available to the public, to the public interest in the material being published, as well as to any relevant privacy code.
The High Court had refused the application but the Court of Appeal allowed PJS’s appeal on January 22, 2016 and granted an interim injunction which restrained publication of information which would disclose the identity of PJS as well as the details of the sexual relationship.
However, on April 6, 2016, AB’s account was published in print in the US, and thereafter in Canada and in Scotland, clearly identifying the celebrity. As a result of representations by the appellant’s solicitors, publication was restricted to hardcopy editions and online publication was “geo-blocked”, such that internet users in England and Wales could not readily access those sites.
However, details have been published on a number of other websites and social media, although the appellant’s solicitors have been doing their best to remove offending URLs and web pages.
GLOBAL ACCESS
On April 12, 2016, the News Group Newspapers applied to the Court of Appeal to set aside the interim injunction on the ground that, as the information was now in the public domain, the celebrity was unlikely to obtain a permanent injunction at trial and the interim injunction could therefore no longer be justified. On April 18, the Court of Appeal held that the injunction should be discharged. The Supreme Court restored it pending determination of the celebrity’s application for permission to appeal, which it ordered to be heard with the appeal, should permission be granted.
Bob Satchwell, executive director at the Society of Editors, said: “It is quite ridiculous that people elsewhere can know about the story but people in Britain are not allowed to. It makes a mockery of the system.”
Media lawyer Mark Stephens said the case could be the most significant since the infamous 1986 Spycatcher case when the government attempted to stop the media reporting allegations of misconduct in MI5 in the memoirs of a retired secret service employee.
The central issue now is whether the trial judge is likely to grant a permanent injunction. But was the case given more attention than it deserved?
Lord Mance made this pertinent observation in his judgment: “Some may still question whether the case merits the weight of legal attention which it has received. But the law is there to protect the legitimate interests of those whose conduct may appear unappealing, as well as of children with no responsibility for such conduct.”