PJS v News Group Newspapers Ltd

The Supreme Court granted permission to appeal and continued an interim injunction restraining publication of intimate details identifying the appellant pending trial. The court applied the Human Rights Act 1998 and the Convention rights (articles 8 and 10), holding that section 12 does not give article 10 precedence but requires the court to be satisfied that the claimant is likely to establish at trial that publication should not be allowed. The Court found error in the Court of Appeal's approach to section 12 and to the supposed "limited public interest", emphasised the distinction between confidentiality and intrusion, and held that further wide dissemination in the English print and online media would cause additional, qualitatively greater intrusion, particularly to the appellant's family and young children.

Background and facts:

• The appellant (PJS) engaged in occasional sexual encounters which were disclosed to the Sun on Sunday and other media. The appellant and his wife (YMA) have young children.
• After the appellant sought to restrain publication on grounds of breach of confidence and misuse of private information, Cranston J refused an interim injunction (15 January 2016). The Court of Appeal allowed an appeal and granted an injunction on 22 January 2016 ([2016] EWCA Civ 100). Following extraterritorial publications and widespread internet dissemination, NGN applied to set aside the interim injunction and the Court of Appeal discharged it on 18 April 2016 ([2016] EWCA Civ 393).

Nature of the application and procedural posture:

• The Supreme Court heard the appellant's application for permission to appeal and related submissions, and considered whether to continue the interim injunction pending trial.

Issues framed by the court:

• How HRA section 12 applies to applications for pre-trial injunctions affecting article 10 rights.
• Whether the Court of Appeal erred in treating section 12 as enhancing the weight of article 10 and in concluding there was a "limited public interest" in publication.
• Whether extensive internet and foreign publication meant the interim injunction had become futile or should nonetheless be continued to protect privacy and the interests of the children.

Court's reasoning and conclusions:

• The court reiterated that articles 8 and 10 have equal potential force and that the correct approach is an intense focus on the comparative importance of the rights in the individual case, applying proportionality principles and the section 12(3) requirement that the applicant be "likely to establish that publication should not be allowed" at trial (as explained in Cream Holdings).
• The Court concluded the Court of Appeal erred in saying section 12 "enhances the weight" of article 10 and wrongly introduced a supposed public-interest justification for the publication limited to criticism. The court reviewed ECtHR authority showing that "kiss and tell" stories that merely satisfy curiosity attract limited article 10 protection.
• The court gave weight to the distinction between confidentiality and intrusion: repetition or further publication in a different medium (particularly prominent hard-copy national press publication and searchable presence in this jurisdiction) may add qualitatively to intrusion and distress and to foreseeable harm to children.
• On the evidence the Supreme Court concluded it was likely that at trial a permanent injunction would be granted to protect the appellant, his partner and their children from further intrusive publication, and therefore the interim injunction was continued to trial or further order.

Appeal allowed. The Supreme Court concluded that the Court of Appeal had erred in relation to the application of section 12 of the Human Rights Act 1998 and in attributing weight to a "limited public interest". Applying a proper article 8/article 10 balancing and recognising the qualitative difference between existing internet dissemination and proposed further English hard‑copy and online publication, the Court held the interim injunction should be continued until trial to preserve the privacy interests of the appellant, his partner and their young children.

Cranston J refused an interim injunction (15 January 2016). The Court of Appeal allowed the appellant's appeal and granted an injunction ([2016] EWCA Civ 100) on 22 January 2016. After further internet and overseas publication, NGN obtained the discharge of that injunction from the Court of Appeal ([2016] EWCA Civ 393) on 18 April 2016. The Supreme Court allowed the appellant's appeal and continued the interim injunction to trial ([2016] UKSC 26).