Tuesday 12 April 2016

The rights to privacy and freedom of expression: PJS v News Group Newspapers

Update - The Supreme Court has ruled that the injunction is to remain in place - Supreme Court UK Judgments.

Updated - On 18th April the Court of Appeal held that the interim injunction should be removed but it remains in force pending the decision of the Supreme Court - see HERE.
PJS is well known in the entertainment business and is married to YMA, who is a well known individual in the same business.  They have young children.  In January 2016, two people who had engaged in a “three-way sexual encounter” with PJS in 2009 approached the editor of The Sun on Sunday with the story. (Why this was done after around 7 years is not explained).  The editor proposed to publish it and contacted PJS’s representatives to inform them of the position. Having been informed of the proposed story, PJS applied for an injunction preventing publication of the information.

At the Court of Appeal in January 2016:

On 22nd January 2016, a two judge Court of Appeal (Civil Division) - Jackson and King LJJ - issued an interim injunction to prevent publication of the story - PJS v News Group Newspapers Ltd [2016] EWCA Civ 100.  This injunction is binding on everyone within England and Wales.

It appears that the name in question may have been published in other jurisdictions.  This is reminiscent of the "Spycatcher" litigation in the 1980s where the government sought to prevent publication of a book by Peter Wright relating to his times in British intelligence even though the book was available in other countries - see The Guardian 13th October 2008

The European Convention:

Under the influence of Article 8 (Right to Privacy) of the European Convention on Human Rights, the English courts have been able to develop greater protection for the privacy of individuals.  This is not an absolute right.  Under Art 8 everyone has the right to respect for his private and family life, his home and correspondence.  There must be no interference BY A PUBLIC AUTHORITY (which includes the courts) with 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 the for the protection of the rights and freedoms of others.

A further right is that in Article 10 (Freedom of expression)

"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.

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."

The interplay between articles 8 and 10 was considered by the House of Lords in Campbell v MGN [2004] AC 457 and In re S (a child) [2005] 1 AC 593.

Human Rights Act 1998:

Of particular importance in this context is section 12 of the Human Rights Act 1998 which applies where a court is considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression.  It is worth remembering that section 12 was included in the 1998 Act because of the importance that Parliament attached to journalistic freedom.

Section 12 prevents relief being granted to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.  Section 12 continues to require the court to consider certain matters in cases where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material. The court has to have particular regard to 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.  Also, any relevant privacy code must be considered.

The court held that the claimant’s article 8 right to privacy outweighed the defendant’s article 10 rights and commented that, if published, the proposed story would be “devastating” for the claimant.  The privacy rights of the claimant’s children were also held to be a relevant factor in the balancing exercise. Accordingly, the court concluded that the claimant was likely to establish that the publication should not be allowed, meaning that it satisfied the test in s12(3) of the HRA 1998 for granting interim relief where article 10 is engaged.

For a detailed discussion see Informm's Blog

Joshua Rozenberg's article in The Guardian 11th April

At the Court of Appeal on 18th April 2016:

An application was made to the Court of Appeal to discharge the court's interim injunction of 22nd January due to recent coverage of the relevant information, both overseas and on the internet - see this judgment at PJS v NGN Ltd [2016] EWCA Civ 393.

The court concluded by saying: 

Part 6. Conclusion
  1. For the reasons set out above, in my view the injunction restraining publication of the information identified in the confidential schedule to the order dated 22nd January 2016 must be set aside. For the time being, however, the various documents on the court file including the court's unredacted judgment of 22nd January 2016, must remain confidential. This is for the reasons explained by Lord Nicholls in Cream Holdings v Banerjee [2004] UKHL 44; [2005] 1 AC 253 at [26].

  2. Once the injunction has been lifted, it will be a matter for NGN to decide whether they wish to go ahead with publishing their story. If they do so, that will not be a contempt of court, but they will still face the claimant's claims for breach of confidence and misuse of private information.

  3. Any future applications to release documents on the court file or to substitute the full judgment dated 22nd January 2016 for the redacted version can be made, if and when such applications become appropriate. It may be possible to deal with those matters in writing.

  4. I request counsel to agree an appropriate form of order to give effect to the court's decision.

  5. If Lady Justice King and Lord Justice Simon agree, this application to discharge the injunction will be allowed to the extent indicated

  6. Lady Justice King:
  7. I agree.

  8. Lord Justice Simon:
  9. I also agree. 
For discussion see Inforrm's Blog and UK Human Rights Blog 19th April.
 At the Supreme Court:

The interim injunction remains in force.  The Supreme Court heard oral argument on 21st April 2016 and has reserved judgment which will be handed down at a later date.  See the Court's Announcement.

1 comment:

  1. It is perhaps worth mentioning that the fact that the injunction does not apply in other jurisdictions is particularly significant within the United Kingdom - or more precisely within Scotland.