May 19, 2016

The Supreme Court has upheld an interim injunction against The Sun Newspaper preventing its publication of the worst kept secret in tabloid news – the identity of a married celebrity involved in a threesome with another couple. In court documents the claimant is known as PJS and his partner as YMA, but you know the identity of the celebrity. Everyone knows the identity of the celebrity. Even the Court had to recognize the “significant internet and social media coverage” of the story (although it went to great pains to point out that publication in hard copy was limited) and the ridicule thrown at the law in general for allowing the story to continue to be enjoined in England and Wales; their Lordships even gave a shout out to the Mail Online’s description of the law as an ass.

In upholding the injunction, the Court reasoned that on its face there was no public interest in publishing such a prurient story about a sexual encounter. It even went so far as to delineate between acceptable and unacceptable speech stating that “the reporting of sexual encounters…doesn’t even fall within the concept of freedom of expression under article 10” but if it does that “this type of expression is at the bottom end of the spectrum of importance.” In making a preliminary finding about the existence (or not) of public interest in the publication of the story is the Court pre-empting the role of the trial judge? As Lord Justice Jackson pointed out in the Court of Appeal, shouldn’t the focus be on the efficacy of the order itself?

However, the Court’s approach was merely in keeping with well establish precedent under section 12(3) of the HRA, which makes the likelihood or otherwise of success at trial an essential element of making an interim order. Thus, determining, or at least speculating on, the strength of The Sun’s public interest defence at trial is squarely within expectations. The Court, knowing the details of the matter far more…um…intimately than we do, is arguably better positioned to posit the success of running a public interest defence in this case in light of the particularly private nature of sexual encounters and the interests of the claimant’s children. And regardless, it is well within its power to do so.

Furthermore, the Court was not in agreement with the lower court about the efficacy of the interim injunction. Rather, the Court reasoned that there is a difference between the level of intrusion caused by online stories and gossip, and stories published in print. To the Court the “intrusiveness and distress likely to be involved” in publishing the story in England would include the intimate details of the sexual activities involved and be qualitatively different from merely posting the name of the claimant online. Furthermore, the Court highlighted the interim injunction’s role as a stop gap while the parties head towards trial on the issue of whether or not there should be a permanent injunction against the story. The Court thus reasoned that were the injunction to be lifted now, the legitimacy of publication to be decided at trial would be rendered irrelevant.

Does that open the floodgates to celebrities, public figures and other potential privacy claimants? And what of the inevitable chilling effect that would have on free expression and the commercial ramifications that carries for all publishers?

Every privacy case turns on its own facts, and our advice to publishers remains the same, even in light of this result:

1. Is there a reasonable expectation of privacy? This is the starting point for whether or not an injunction will be granted. Generally sex is private. And if there are children as interested parties, the courts will be particularly careful.
2. Has this information been published elsewhere and if so how widespread is the publication? Even if publication is widespread, such as on social media or in publication abroad, the subject may still have a reasonable expectation of privacy. The extent of existing publication has a bearing on whether or not an injunction would be granted, although the Supreme Court now seems to be drawing a distinction between publication online and in print, which is worth keeping in mind.
3. If there still is a reasonable expectation of privacy, is publication of the information in the public interest? Not just is the public interested, but does the disclosure add something to the public debate beyond mere titillation. This was of particular concern to the Court in this case. Publishers should be able to demonstrate that they have considered the question of the public interest and the factors that they have taken into account in determining in favour of publication.

Ultimately, the writer cannot help and shake her head at how little she would be interested in this story were it not for the injunction. In this day and age, who isn’t engaged in a threesome or an open marriage?