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Freedom of Speech v Privacy: a balancing act



United Kingdom

With the rapid technological advances of the digital age, doubts have been cast over the viability and sustainability of privacy injunctions.

With the rapid technological advances of the digital age, doubts have been cast over the viability and sustainability of privacy injunctions. However, the final judgment of the Supreme Court in the case of PJS v News Group Newspapers Ltd has seemingly put this to bed, for now, in what has been described by some commentators in the media as the judicial sanctioning of a 'cheater's charter'. The case demonstrates the need for a clear public interest in order for the right to freedom of expression to outweigh the right to privacy.

The case involved two well-known individuals in the entertainment business, referred to throughout as 'PJS' and 'YMA'. They are a married couple with two young children. The case revolves around an extra-marital sexual relationship carried on by PJS between 2009 and 2011 with 'AB' and 'CD'. AB disclosed the affair to an employee of News Group Newspapers Ltd ('NGN'), who informed PJS in 2016 that they intended to publish details of the relationship as told to them by AB. PJS then issued proceedings against NGN under article 8 of the European Convention on Human Rights ('ECHR'), claiming that publication would breach his rights to privacy and confidentiality. He also applied for an interim injunction to silence NGN pending the outcome of the trial.

Unsurprisingly, NGN argued that they had a right to freedom of expression under article 10 ECHR and that prohibiting publication of the story would infringe this right. Essentially, the exercise before the court was a balancing act; between the right of PJS to privacy on the one hand and the right of NGN to freedom of speech on the other. According to section 12(3) of the Human Rights Act 1998 ('HRA'), an interim injunction can only be granted where it is likely that, when it reaches trial, the court will order a restraint on publication of the material. Further, section 12(4) HRA provides that the court must give particular thought to the importance of freedom of expression and whether the information is already in the public domain, any public interest in its publication and any relevant privacy code.

Initially, the High Court refused the application for an interim injunction, but the Court of Appeal reversed this decision and granted the injunction, restraining publication of information which would identify PJS and details of the extra-marital relationship. However, on 6 April 2016 AB's account of the relationship was published in the United States and, subsequently, Canada and Scotland. The publications identified the parties involved. Notably, however, online publication was 'geo-blocked' in an attempt to prevent those in England and Wales from accessing the websites.

NGN appealed to the Supreme Court on the basis that the interim injunction was obsolete. They argued that the information had been published in other jurisdictions and therefore was now in the public domain, albeit that those in England and Wales were 'geo-blocked' from the various websites. In a majority judgment (with one dissenter) the court held that the interim injunction should be maintained. Although the information had already been disclosed, the repetition of further disclosure and 'unrestricted internet coverage' would still infringe PJS' right to privacy, particularly if it occurred in a different medium. The Supreme Court indicated that there was a qualitative difference between the existing publication and unrestricted publication by English media in hard copy and on their websites and that the difference had not been given due weight or consideration. The Supreme Court noted that the interests of PJS' children had not been fully appreciated and that publication would be 'devastating' for the children. Moreover, it was noted that the lifting of the injunction might open the floodgates to a media frenzy, which would be of much longer duration and therefore be an enduring invasion of privacy.

The case had become a test case for whether injunctions restraining the national press can be sustained in an era when people can access, from the comfort of their own homes, information from websites based in jurisdictions other than England and Wales, thereby circumventing an injunction. The decision has been criticised by commentators and labelled a 'cheater's charter' due to the protection from exposure it seemingly affords to those in the public eye engaging in extramarital activities. It seems arbitrary to uphold an injunction when the information is so widely available outside of England and Wales and the couple have been identified on social media. Clearly, enforcing an injunction against thousands of individuals speaking freely on their social media accounts is not a practical option for PJS. Though their identities have not been served up on a plate to passive readers, it only takes a short internet trawl for the names of those involved to be found. Arguably, anyone interested in finding out about the story can still do so.

Critics of the final decision say that the ruling has created a new privacy law by default as it seems that a celebrity's right to privacy outweighs the public's right to know. However, the court made the point that there was no public interest in 'kiss and tell' stories or 'criticisms of private sexual conduct' and that a person's privacy should not be invaded purely because of their celebrity status. In previous cases, the fact that a celebrity chose to live their life (and profit by being) in the public eye had been cited as an argument for their right to privacy being less than that of an unknown person. In addition, it was considered important that the public know about the true character of someone holding themselves out on the basis of their conduct. Lord Mance explained that "…it is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved…but ... that does not apply here." Whatever your thoughts, it may be a hollow victory for the couple involved as the media attention garnered by the case was quite significant. The call for an injunction, if anything, may have fuelled public curiosity as to the identities of those involved.

It remains to be seen what the future holds for celebrity injunctions, but when combined with other legal tools such as defamation, copyright and data protection legislation it seems that, for the time being, the law is still capable of protecting reputations and a celebrity's right to privacy.

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