Privacy, private life and the press (Articles 8, 10 ECHR)
FACTS
PJS is married to YMA and both are well-known public figures. During their marriage, PJS had a sexual relationship with AB and, on one occasion, AB and CD. In January 2016, the Sun on Sunday newspaper notified PJS that it proposed to publish AB’s account of their sexual activities.
PJS applied to the court for a permanent injunction on publication, claiming that publication would breach his right to privacy under article 8 of the European Convention on Human Rights (ECHR). That application has not been decided.
PJS further applied for an interim injunction to prevent publication until such time as his claim is decided. The respondent, News Group Newspapers (NGN), the owners of the Sun on Sunday, resisted that application on grounds of their article 10 ECHR right to freedom of expression. Interim injunctions which might affect article 10 are subject to section 12 of the Human Rights Act 1998. This section provides that “particular regard” should be given to the right of free expression, and that prior restraint by an interim injunction should only be granted only if a claimant is likely to obtain a permanent injunction at trial. An interim injunction was granted by the Court of Appeal.
The interim injunction only applied in England and Wales, and the story was subsequently published in the English language outside of that jurisdiction. NGN thus applied to have the interim injunction lifted, claiming that PJS was now unlikely to obtain a permanent injunction since the information was in the public domain. The Court of Appeal was convinced and lifted the interim injunction. PJS appealed to the Supreme Court.
HELD
The Supreme Court held found that the Court of Appeal based its decision on two errors in law, and it restored the interim injunction:
- The Court of Appeal wrongly directed itself that section 12 HRA enhanced the weight to be given to article 10 rights in the balancing exercise.[51]
While section 12 states that “The court must have particular regard to the importance of the Convention right to freedom of expression”, there is nonetheless “considerable authority… which establishes that neither article has preference over the other”[20].
- The Court of Appeal wrongly referred to a “limited public interest” in the story. There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters. [24][32]
The Supreme Court found that PJS was likely to establish that publication of the story would unlawfully infringe article 8 ECHR.
The Supreme Court held that there is a significant difference in intrusiveness and distress caused by the small number of disclosures already made, and the “media storm” which would follow publication in the English media in hard copy.
Conversely, Lord Neuberger said, “any public interest in publishing must, in the absence of any other, legally recognised public interest, be…incapable by itself of outweighing such article 8 privacy rights”[24]. In other words, while the public may be interested in “kiss-and-tell stories”[15], this does not translate to a legally enforceable right to publish.
The Supreme Court held that grant of a permanent injunction would be the only practical remedy.[43]
Accordingly, the Court restored the interim injunction pending trial of PJS’ claim.
COMMENT
The case is the latest in a long line of post Human Rights Act 1998 case law which affirms the protection which that Act offers to individual privacy. However, the decision of the Supreme Court has been received badly by some commentators, particularly in the tabloid press.
This case is likely to be important in the ongoing debate about the possible repeal of the Human Rights Act 1998. PJS used the Human Rights Act 1998 to invoke in domestic courts his ECHR rights, preventing publication of a potentially lucrative news story by the English press. Many commentators drew parallels between the widespread publication of Spycatcher in breach of confidence and the online and multi-jurisdictional reporting in this case. However, as the Supreme Court explained, not only were the legal rights and remedies in this case different – privacy as protected by the Human Rights Act 1998 – the public interest in publication in this case was key to the court’s analysis.