The right to privacy in the internet age: PJS v News Group Newspapers

PJS v News Group Newspapers Ltd [2016] UKSC 26

A married celebrity had a threesome. His partner wasn’t one of the three. The affair was published widely on the internet outside the UK. A UK newspaper wanted to publish the story too. Demonstrating that it takes the right to privacy seriously in the age of the internet, the Supreme Court in May 2016 upheld an injunction preventing the publication of the story in the UK.

The decision confirms that the right to privacy protects not just secrecy, but intrusion into private life. Therefore the fact that the information was already publicly accessible was not fatal – the injunction would prevent additional intrusion and harm to the applicant and his family caused by print publication.

The applicant – called PJS for privacy reasons – was a well-known entertainment figure who was married to YMA, another entertainment figure. The respondent, News Group Newspapers (NGN), wished to publish an article about PJS’ sexual encounters with AB, and a threesome with AB and AB’s partner CD.

After becoming aware that his erstwhile sexual partners AB and CD had approached the Sun (a newspaper published by NGN), PJS brought proceedings on the basis that publication would breach confidence and invade privacy.

At issue in this case was the interim injunction granted to preserve the privacy interests of PJS and his family pending the full trial. The Court of Appeal had initially granted an injunction in January 2016. However, after a US magazine published details and names of the parties involved in April 2016, it allowed NGN’s application to set aside the injunction, on the basis that knowledge of the relevant matters was so widespread that it diminished the applicant’s privacy claim. In those circumstances, the Court of Appeal held that the right of the newspaper to publish the details prevailed.

PJS appealed the decision to set aside the injunction to the Supreme Court.

The central issue in the appeal was the balance to be struck between two competing rights: the applicant’s right to privacy, contained in article 8 of the European Convention of Human Rights (ECHR), and NGN’s right to freedom of expression (article 10 ECHR).

Public interest in publication of the story
The Supreme Court was not persuaded by NGN’s argument that there was public interest in “correcting the record” on the applicant’s marriage. There was a distinction between reporting facts capable of contributing to debate of general public interest – where NGN’s article 10 right would apply with full force – and reporting sensationalist news that merely entertains, which does not attract the same robust protection. The public interest “cannot be reduced to the public’s thirst for information about the private life of others, or to the reader’s wish for sensationalism or even voyeurism”: quoting Couderc and Hachette Filipacchi Associés v France (Application No 40454/07) at [101].

Widespread knowledge may not extinguish a privacy claim
Claims based on respect for privacy and family life are based on the two core components of: unwanted access to private information and unwanted access to or intrusion into one's personal space. This second element can justify the grant of an injunction even where confidentiality has evaporated. The publication of the information in overseas media may have destroyed a claim based on confidentiality, but it did not substantially weaken a claim based on intrusion: at [65].

The Supreme Court also rejected the argument that the injunction served no purpose, because in its view there was a qualitative difference in intrusion and distress likely to be inflicted by print publication. Lord Mance approved the statement in JIH v News Group Newspapers [2010] EWHC 2818 that “the repetition of known facts about an individual may constitute unjustified interference”: at [26]. He found the Court of Appeal did not give adequate weight to the extent to which publication in a different medium would exacerbate the interference that had already taken place.

Importance of children’s rights
The Court, and Lady Hale in particular, were at pains to emphasise that the protection of privacy was not just for the benefit of the appellant, but also his two young children. In addition to the children being affected by the breach of their parents’ right to privacy, Lady Hale pointed out that children have privacy interests of their own: at [72].

Lord Toulson reached a different decision, largely on the basis of the loss of secrecy: “the story’s confidentiality has become so porous that the idea of it still remaining secret in a meaningful sense is illusory”: at [86]. He argued that once the facts are widely known, the legal landscape changes, and “the court needs to be very cautious about granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law”: at [88].

Privacy and the internet
All members of the court appeared to be acutely aware of the implications of the internet and other developments in communications technology for privacy cases such as this one. However they reached different conclusions about the approach to be adopted.

Lord Neuberger took a more strictly legal point of view. While acknowledging that the court may be accused of making vain gestures, he thought the legal position was clear: the applicant had a right to privacy and the court’s role was to protect it.

On the contrary, Lord Toulson’s comments suggested that the court’s approach should change. In what seemed a more contemporary perspective, he rejected the majority’s distinction between publication in hard copy and online. For this reason, the injunction would serve little or no purpose, and therefore diminish the court’s standing in the eyes of the public.

Brexit and the ECHR
While the two are not linked in law or logic, Britain’s vote to leave the EU seriously increases the risk that it will also leave the ECHR. The chance of this may be heightened under new PM Theresa May, who has spoken against the Convention in the past. Withdrawing from the Convention would leave UK courts unable to draw on EU jurisprudence (as was done by the Court in this case).

 Brexit also raises the question of the EU Charter of Fundamental Rights, which mirrors the ECHR but adds some additional rights. Where the Charter provides for stronger protection than the ECHR (such as children’s rights), these will be lost when the UK withdraws from the EU.

 A full text of the decision can be found here.

 Bobbi Murphy is a Law Graduate at King & Wood Mallesons.