PJS v News Group Newspapers Ltd

Interim restraint of publication engaging Articles 8 and 10 is governed by sections 12(3) and 12(4) of the Human Rights Act 1998, not the American Cyanamid test. The applicant must show sufficiently favourable prospects of establishing at trial that publication should not be allowed. Neither Convention right has precedence. The court must intensely compare the specific rights, consider the justification for restricting each, and apply proportionality. Prurient curiosity and a kiss-and-tell account do not establish public interest. Public interest in correcting a false public image arises only where the individual set out to present a false picture. An accurate portrayal of a committed relationship is not false merely because it is non-monogamous. On appeal, material errors in the balancing exercise may justify reconsideration.

PJS sought an interim injunction preventing News Group Newspapers Ltd from publishing an account of sexual encounters involving him, AB and CD. Cranston J refused the application, accepting that PJS and his partner had portrayed an image of commitment and that publication could correct that image, while rejecting the argument that publication contributed to a relevant public debate. PJS appealed, arguing that the competing Article 8 and Article 10 rights had been wrongly balanced. The Court of Appeal had to decide whether the first-instance balancing exercise was sustainable and whether publication should be restrained pending trial.

1. Appeal allowed. An interim injunction was continued, restraining publication of the proposed article until trial or further order.
2. Where Articles 8 and 10 are engaged, neither right has precedence. The court must focus intensely on the comparative importance of the specific rights, consider the justifications for restricting each, and apply proportionality to each. The inquiry has two stages: whether the claimant had a reasonable expectation of privacy, and whether that interest must yield to the publisher’s freedom of expression. The approach was explained in McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73, with the underlying balancing principles stated in Campbell v MGN [2004] AC 457 and In re S (a child) [2005] 1 AC 593.
3. Readers’ prurient curiosity does not constitute public interest. Although correcting a false public image may justify publication, that principle applies where the individual has set out to present a false picture. The evidence showed a long-term, loving and committed relationship. Commitment did not entail monogamy, and the publicity material did not present a materially false image. Publication would therefore add information but would not set the record straight. The proposed story was a private kiss-and-tell account rather than a contribution to public debate.
4. The claimant’s public status entitled the newspaper to criticise him, including for conduct which was not criminal. That Article 10 interest nevertheless had to be balanced against the claimant’s Article 8 privacy interest. The interests of the children were also relevant. They were not a trump card, but the likely media attention and intrusion into family life were significant factors.
5. Because Article 10 was engaged, sections 12(3) and 12(4) of the Human Rights Act 1998 governed the interim application. The applicant had to show that he was likely to establish at trial that publication should not be allowed. The Court of Appeal ordinarily treats the first-instance balancing exercise as analogous to a discretion and intervenes only for an error of principle or a plainly wrong conclusion outside the permissible range. Here, the judge had failed to explain how the children’s rights were taken into account and had proceeded on the mistaken basis that the publicity portrayed a false image. Those shortcomings justified carrying out the balancing exercise afresh. The claimant satisfied the statutory threshold.

• Court of Appeal (Civil Division) — Appeal allowed. Interim injunction restraining publication continued until trial or further order: [2016] EWCA Civ 100.
• High Court of Justice, Queen’s Bench Division — Cranston J refused the claimant’s application for an interim injunction, but granted permission to appeal and imposed a temporary injunction pending the appeal.