PJS v News Group Newspapers Ltd

An interim restraint on publication may be granted where the applicant is likely to establish at trial that publication should not be allowed. Human Rights Act 1998 section 12 gives neither article 8 nor article 10 presumptive priority. The court must assess their comparative importance, the justification for interference and proportionality.

Public availability of private information does not by itself defeat a privacy injunction. Privacy protects against intrusion as well as loss of secrecy. Repetition, especially through a more intrusive medium, may cause a fresh invasion. Purely private sexual conduct attracts no legally recognised public interest merely because it concerns a public figure. The independent privacy and family-life interests of affected children, and any relevant privacy code, require particular attention.

PJS v News Group Newspapers Ltd concerned an application to restrain publication of details of the appellant’s past sexual activities. Cranston J refused interim relief. On 22 January 2016 the Court of Appeal allowed the appellant’s appeal and restrained publication: [2016] EWCA Civ 100.

The story was subsequently published in limited hard-copy form abroad and circulated through websites and social media. On the respondent’s application, the Court of Appeal discharged the injunction because the information had become widely available and it considered that a permanent injunction was no longer likely: [2016] EWCA Civ 393.

The central issue was whether that publicity meant that the appellant was no longer likely to obtain a final injunction, notwithstanding the additional intrusion which unrestricted publication by the English media would cause to the appellant, his partner and their children.

1. Disposition. By a majority of four to one, the appeal was allowed. The Court of Appeal’s order was set aside and the interim injunction continued until trial or further order. Lord Mance delivered the principal judgment, with which Lord Neuberger, Lady Hale and Lord Reed agreed. Lord Toulson dissented.

2. Applicable threshold and balancing exercise. Section 12(3) of the Human Rights Act 1998 requires the applicant’s prospects of obtaining final restraint to be sufficiently favourable to justify interim relief. Ordinarily, success must be more likely than not, although exceptionally grave consequences may justify a lower degree of likelihood. Section 12 does not enhance the weight of article 10. Articles 8 and 10 have equal potential force. The court must focus intensely on their comparative importance, examine the justification for interfering with each right and apply proportionality. The Court of Appeal’s contrary direction was an error requiring the Supreme Court to reconsider the injunction.

3. No legally recognised public interest. Criticism of a public figure’s conduct cannot provide a pretext for disclosing private sexual activity. Public curiosity, sensationalism and commercial attraction do not constitute public interest in the legal sense. On the available evidence, the proposed publication lay at the lowest end of the article 10 spectrum and could not outweigh the privacy rights engaged.

4. Confidentiality and intrusion. The majority distinguished loss of secrecy from invasion of privacy. Privacy protects against intrusion as well as disclosure of confidential information. Repetition of known private material can therefore constitute a further tort, including where the same audience may previously have encountered it. Under section 12(4)(a)(i), availability must be assessed by reference to the material’s nature, form and medium. Unrestricted national newspaper and associated online coverage would be qualitatively more intrusive, distressing and enduring than information which had to be sought on websites or foreign publications.

5. Children and effective relief. The children had independent privacy and family-life interests. Section 12(4)(b) required particular regard to the relevant press privacy code, under which an exceptional public interest was required to override children’s normally paramount interests. Damages would not adequately remedy the anticipated serious intrusion. On the present evidence, a permanent injunction was likely, especially because publication would add a media storm without urgency or public-interest justification.

6. Dissent. Lord Toulson considered that the information had become so widely available that secrecy was illusory. In his view, section 12(4)(a)(i) required consideration of availability from all sources, without significant differentiation between print, internet and social media. He would have dismissed the appeal.

1. United Kingdom Supreme Court: In PJS v News Group Newspapers Ltd [2016] UKSC 26 , the court allowed the appeal by a majority of four to one, set aside the later Court of Appeal order and continued the interim injunction.
2. Court of Appeal, 18 April 2016: The court discharged the interim injunction after concluding that the intervening publicity made a permanent injunction unlikely: [2016] EWCA Civ 393 .
3. Court of Appeal, 22 January 2016: The court allowed the appeal from Cranston J and restrained publication pending trial: [2016] EWCA Civ 100 .
4. High Court: Cranston J refused the initial application for an interim injunction on 15 January 2016.