PJS v News Group Newspapers Ltd

When an interim privacy injunction is reconsidered after protected material has been widely disseminated, the court must make a fresh, fact-sensitive assessment under the Human Rights Act 1998, section 12(3) and (4). Confidentiality normally weakens or ends when information becomes generally accessible, but misuse of private information may survive because further publication can remain an intrusion into privacy. Widespread knowledge reduces the weight of the Article 8 right and weakens the discretionary case for an injunction. It does not extinguish the claim or provide a defence. The court must distinguish media-driven defiance from dissemination which it cannot realistically control, and should not maintain an ineffective injunction.

PJS obtained an interim injunction restraining News Group Newspapers Ltd from publishing details of his extra-marital sexual activities. Mr Justice Cranston initially refused relief, but the Court of Appeal allowed PJS’s appeal on 22 January 2016 and granted the injunction.

After extensive publication overseas and on the internet, NGN applied to the Court of Appeal to discharge the order. The application required the court to decide whether the information had entered the public domain, whether PJS’s privacy and confidentiality claims remained viable, and whether the statutory test for interim relief continued to be satisfied. The central issue was whether the changed circumstances justified setting aside the injunction despite the limited public interest in the proposed story.

Application allowed. The interim injunction granted on 22 January 2016 was set aside. Jackson LJ gave the leading judgment, with which King LJ and Simon LJ agreed.

1. Fresh statutory assessment. The original injunction had been correctly granted on the evidence then available. The subsequent overseas, online and social-media dissemination constituted a material change of circumstances requiring a fresh assessment under section 12(3) and (4) of the Human Rights Act 1998. The court had to consider what had occurred, what was likely to occur before trial, and the likely result at trial, with particular regard to the public availability of the material and the public interest in publication.
2. Separate claims. Breach of confidence and misuse of private information protect different interests, as explained in Google Inc v Vidal-Hall [2015] EWCA Civ 311. A confidentiality claim will generally fail when information is so generally accessible that it can no longer be regarded as confidential. Misuse of private information is different. It may survive widespread disclosure because further publication can remain an intrusion into private life. Widespread knowledge reduces the weight of the Article 8 right and weakens the discretionary case for an injunction, but does not extinguish the claim or provide a defence.
3. Effect of section 12. Section 12 does not alter the existence of the Article 8 claim or create a defence to misuse of private information. It increases the weight given to Article 10 and raises the threshold for interim relief. The media-generated debate about the injunction could not itself justify discharge. Nor should an injunction be set aside merely because of disobedience or defiance, as reflected in CTB v News Group [2011] EWHC 1326 (QB) and Attorney-General v Guardian Newspapers Ltd and others [1981] 1 WLR 1248.
4. Application to the facts. The material remained private and publication would still intrude into PJS’s family life. However, much of the intended harm had occurred, the information was widely known, further dissemination was likely, and an English publication would not be a shock revelation. The reduced weight of PJS’s Article 8 rights meant that he was no longer likely to obtain a permanent injunction at trial. The interests of the children were significant but could not determine the result where it was inevitable that they would learn of the allegations.
5. Ancillary orders. The court file and the unredacted earlier judgment were to remain confidential, applying Cream Holdings v Banerjee [2004] UKHL 44. NGN could publish without committing contempt, but remained exposed to the substantive claims for breach of confidence and misuse of private information.

• Court of Appeal (Civil Division). In the present decision, reported at [2016] EWCA Civ 393, the court allowed NGN’s application to discharge the interim injunction because subsequent dissemination had materially altered the section 12 assessment.
• High Court of Justice, Queen’s Bench Division. Mr Justice Cranston initially refused PJS’s application for an interim injunction. PJS appealed, and the Court of Appeal allowed that appeal on 22 January 2016 and granted the injunction later challenged in the present proceedings.