PJS v News Group Newspapers Ltd [2016] EWCA Civ 393
In PJS v News Group Newspapers Ltd [2016] EWCA Civ 393 an application to set aside an interim injunction was made which had banned The Sun on Sunday from publishing details as to the Claimant’s extra marital activities. The claim had been issued in the Queen’s Bench Division and that claim was alleging that the proposed publication would be a misuse of private information and breach of confidence and claiming an interim injunction to stop the proposed publication. Mr Justice Cranston refused the application for the interim injunction in the lower court and an appeal was made to the Court Of Appeal which was heard on the 22nd January 2016, the court allowed the appeal and granted the injunction.
Lord Justice Jackson outlined what had happened since the interim injunction had been granted. He stated that all held under the injunction until the 6th April 2016 when a USA Magazine published the story. Other publications then picked up on it outside the jurisdiction in the USA, Canada and Scotland.
As a consequence the identity of PJS and YMA started to be revealed online including freely referred to on social media. Much of the press complained that only in England and Wales could the story not be reported.
Because the identities had become so well known, NGN applied to set aside the injunction.
Counsel for NGN argued there had been a material change in circumstances since the granting of the injunction.
NGN lodged witness statements with the court by a partner at the newspapers’ solicitors exhibiting numerous articles about the case. He also referred to a tool, Google Trends which from the 6th April 2016 showed there had been a massive increase in the searches as to PJS and YMA.
The grounds of the newspaper’s application were that
- The protected information was no longer confidential or private.
- The Claimant’s Article 8 rights were no longer engaged.
- The litigation had triggered a public debate and the naming of them would contribute to that debate.
- As the facts were so widely known any article the paper now published will not be as dramatic and therefore less harmful to the parties and their family.
Counsel for PJS submitted,
- The press had whipped up the debate and had encouraged their readers to search out the identity of the parties.
- They were putting pressure on the court by ridiculing the court’s decision.
- Not all secrecy has been lost as to the Claimant’s sexual activities as the story itself has not been published.
- The Claimant and his partner and children still had Article 8 rights which required protection.
- Re-publication of private information in the jurisdiction is still tortious and a breach of Article 8.
Lord Justice Jackson stated the Defendant had not appealed the decision of the Court of Appeal therefore they had not challenged the balancing of PJS’s Article 8 rights against NGN’s Article 10 rights. Therefore the original junction was correctly granted.
The hearing was as to whether circumstances had changed since the order was made that meant it should be set aside even though there was limited public interest in the proposed story.
Lord Justice Jackson quickly rejected NGN’S argument that the case had stimulated debate with the public about privacy injunctions and therefore it was important that NGN could participate in that debate. He stated that it cannot be permissible for the press to stir up a debate about an injunction which they were subject and then rely upon that as a ground to set it aside.
He then stated that a claim for misuse of information can survive when in the public domain but it depends on how widely it is known.
The Judge made it clear that doesn’t mean that no claim for damages for the breach doesn’t occur, only that the claim for an injunction must weaken. Lord Justice Jackson also made it clear that his view was that the story that was proposed was likely to be a breach of the Claimant’s Article 8 rights but the balance has shifted between Article 8 and Article 10.
The assessment the court was to make was whether the Claimant is likely to obtain a permanent injunction at trial. The court must pay regard to the factors in HRA section 12 (4)(a)(i)and (ii).
The Judge’s decision was that the Claimant was likely to establish an Article 8 breach however not likely to obtain a permanent injunction at trial.
He summarised those reasons
- Confidentiality had probably been lost
- Much of the harm which the injunction was intended to prevent has now been caused.
- The material is still private as it concerns intimate sexual matters and the court rejected the papers submission that PJS’s Article 8 right were no longer engaged.
- If the injunction stands there will be endless speculation and conjecture up until trial.
- The need to balance Article 8 rights against Article 10 rights means there is a limit as to how far the courts can protect individuals against the consequences of their own actions.
- Having regard to recent events the weight attached to PJS’s article 8 rights had been reduced and it could not be said he would now be granted a permanent injunction at trial.
- The courts shouldn’t ban what is common knowledge.The court should not make orders that are ineffective.
Finally the Judge turned to YMA and the children and the fact they will discover the matter from others and when they are older. He stated that was now inevitable whether an injunction was granted or not. The Judge set the interim injunction aside.
He stated that if NGN publish the story they will not be in contempt but if they do they will face the prospect of the Claimant’s misuse of private information and breach of confidence claim.
The Claimant was allowed until 10am on the 19th April to lodge an application for permission to appeal to The Supreme Court and the injunction was extended until 2pm on the 20th April 2016.
The Claimant did lodge an application for permission and The Supreme court decided it was important enough that there would be an oral hearing on Thursday 21st April 2016 at 9.30am.
“The Supreme Court will hear argument as to whether permission to appeal should be granted, and, if it is granted, as to whether the appeal should be allowed or dismissed.
The interim injunction granted by the Court of Appeal will remain in place until the conclusion of the Supreme Court hearing, and at the end of the hearing the Supreme Court will decide whether to continue that injunction.“
The Supreme Court has reserved its decision until a later date and in the meantime the injunction will continue.