PJS v News Group Newspapers Ltd  UKSC 26
Case date: 19/05/2016
Court: Supreme Court
Area/s of law: Article 10 ECHR, Article 8 ECHR, Confidence, Privacy
PJS is an individual in the entertainment business and is married to YMA, a well-known individual in the same business. They have two young children.
News Group Newspapers (“NGN”) discovered that PJS had been involved in extramarital sexual activities and intended to publish a story about it. PJS brought proceedings against NGN for breach of confidence and misuse of private information and sought an interim injunction to restrain the proposed publication and identification of the individuals involved.
The application for an interim injunction was refused at first instance by Mr Justice Cranston J but his decision was overturned by the Court of Appeal on 22 January 2016 ( EWCA Civ 100) and the injunction granted.
In April 2016 NGN applied to the Court of Appeal to set aside the injunction it had granted on the basis that the information sought to be protected had entered the public domain and PJS was unlikely to obtain a permanent injunction at trial. On 18 April the Court of Appeal acceded to the application and discharged the injunction ( EWCA Civ 393), pending an appeal to the Supreme Court.
On 21 April 2016 the Supreme Court heard an oral application for permission to appeal and (if granted) the appeal itself.
By today’s judgment of 19 May, the Supreme Court unanimously granted permission to appeal and, by a majority of 4-1, allowed PJS’s appeal. Lord Mance, Lord Neuberger and Lady Hale each gave separate judgments, with which each member of the majority agreed (Lord Reed being the fourth). Lord Toulson gave a dissenting judgment.
The interim injunction will now be continued until trial or further order.
All members of the Supreme Court held that the Court of Appeal had erred in law in reasoning that s.12 HRA “enhanced” the weight that article 10 rights carry in the balance with article 8 rights (at , , ). Rather, existing authority established that, even at the interlocutory stage, (i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied (at ).
The Court of Appeal also erred in referring to a “limited public interest” in the proposed story and in its introduction of that supposed interest into a balancing exercise (at , , ). Although the media was entitled to criticise public figures, this could not be a pretext for invasion of privacy by disclosure of alleged sexual infidelity of no public interest. It might be thought that such reporting “does not even fall within the concept of freedom of expression under article 10 at all,” or was at best at “the bottom end of the spectrum of importance” (at ).
As to the question of whether an injunction was likely to be granted at trial, there was a distinction between claims in privacy and confidentiality. If the claim had been solely concerned with confidentiality, the extent of the material already in the public domain would have caused “substantial difficulties” (at ). However, claims based on respect for privacy and family life did not depend on confidentiality (or secrecy) alone, but also “intrusion” (at ). The identification of PJS in the electronic media since January 2016 had not substantially reduced the strength of PJS’s claim insofar as it was based on the latter (at ).
There is substantial recent authority recognising that even “the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person but also of those who are involved with him”, quoting Mr Justice Tugendhat in JIH v News Group Newspapers Ltd  EWHC 2818 (QB).
The question of whether a claim for misuse of private information would survive where the information is in the public domain is not answered by applying a “quantitative test.” This might overlook the invasiveness and distress involved, even in repetitions of private material and of open hard copy exposure (at ). The correct approach, when considering under HRA s.12(4)(a)(ii) whether material has or is about to become available in the public domain, was to consider inter alia the medium and form in relation to which injunctive relief is sought. The Court of Appeal had not given due weight to qualitative differences between disclosures already made on the internet and unrestricted hard copy and online publication by the English media (at -). These qualitative differences were also relevant to the enquiry under HRA s.12(4)(b), in light of the emphasis on the independent privacy rights of children in the IPSO Editors’ Code of Practice (at , ).
The position of the children was very important and “deserve closer attention than they have so far received in this case” . The court will have to consider carefully the nature and extent of likely harm to the children’s interests which would result from publication. At present there was no evidence about it and it was a matter “which should be properly argued at trial, not pre-empted by premature disclosure” .
The “media storm” that discharge of the injunction would unleash would add a “different and in some respects more enduring dimension” to the existing invasions of privacy being perpetrated on the internet. For this reason, the majority concluded that a permanent injunction would be likely to be granted at trial (at ).
Lord Toulson, dissenting, argued that, for the reasons set out by the Court of Appeal, PJS was no longer likely to obtain a permanent injunction at trial (at ). He stated that if the information was in wide, general circulation “from whatever source or combination of sources,” the medium of intended publication if the injunction were lifted would not make a significant difference (at ).
He also considered that the decision of Mr Justice Eady in Mosley v News Group Newspapers Ltd  EWHC 1777 (QB),  EMLR 20 should not be regarded as “the final word” on whether exemplary damages could in theory be awarded for breach of privacy. Such an award might in an appropriate case be considered “necessary and proportionate in order to deter flagrant breaches of privacy and provide adequate protection for the person concerned.” 
The full text of the judgment is available here.