Introduction

With the advancement of technology, information could easily be widespread through different channels within a short period of time.  On 19 May 2016, the UK Supreme Court gave a landmark judgment (PJS v News Group Newspaper Ltd) on the protection of privacy.  The Supreme Court decided that an individual might obtain injunctions against intrusions into their privacy, even though the subject information of the injunction could be easily ascertained from the internet.

Facts of the case

The brief facts of PJS are as follows:

1.        PJS was the Claimant (and the Appellant) in this case, he was married to YMA with 2 young children.  Both PJS and YMA are well-known in the entertainment business. 

2.        Between 2009 and 2011, PJS had a sexual relationship with AB and, on one occasion, with AB and CD (who was AB’s partner). In January 2016 the editor of the Sun on Sunday newspaper, published by News Group Newspapers (“News Group”), notified PJS that he proposed to publish AB’s account of the relationship.

3.        PJS then issued legal proceedings and applied for an interim injunction, to restrain publication pending the trial of his claim.  The High Court Judge Cranston refused the interim injunction application on 15 January 2016 whilst the Court of Appeal on 22 January 2016 allowed an appeal and restrained publication of the relevant names and details of their relationship.

4.        The injunction was effective for 11 weeks and AB took steps to get the story published in the United States.  Some other similar articles followed in Canada and Scottish newspapers.  Thereafter, various English and Welsh newspapers have published vigorous complaints about their own inability to publish material which was available on the internet.

5.        In April 2016, News Group applied to the Court of Appeal to set aside the interim injunction, on the grounds that the protected information was in public domain, and that the injunction therefore served no useful purpose and was unjustified interference with News Group’s own rights under article 10 of the European Convention on Human Rights (“ECHR”).  The Court of Appeal discharged the injunction. 

6.        PJS then went to the Supreme Court to apply for continuing the interim injunction.

Discussion

Statutory Authority under UK law

PJS’s case was that the publication would breach his rights to privacy and confidentiality, protected by article 8 of ECHR.  Article 8 of ECHR (right to respect for private and family life) provides that:

1.        Everyone has the right to respect for his private and family life, his home and his correspondence.

2.        There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In gist, the application by PJS required the court to balance PJS’s rights under article 8 of ECHR with News Group’s right to freedom of expression under article 10 of ECHR and section 12 of the Human Rights Act 1998 (“HRA”).

Article 10 of ECHR (freedom of expression) provides that:

1.        Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.        The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Sections 12(3) and (4) of HRA provides that:

1.        No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

2.        The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –

a.        the extent to which –

i.           the material has, or is about to, become available to the public; or

ii.         it is, or would be, in the public interest for the material to be published;

b.        any relevant privacy code.

The Supreme Court considered the above provisions and determined that the Court of Appeal had wrongly directed itself in regard to the enhanced weight to be attached to article 10 of the ECHR in the balancing exercise when applying section 12 of HRA.  The Supreme Court was of the view that the case law clearly indicated that even at an interlocutory stage neither article 8 of ECHR nor article 10 of ECHR had precedence over the other.

Limited Public Interest

The Supreme Court highlighted that there was no “limited public interest” in the story of PJS which was proposed to be published.    Indeed, there is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity of more than one person at the same time, however famous the individuals involved.

In this regard, the newspapers were entitled to criticise the conduct of individuals even if there were nothing illegal about it, but criticism of conduct could not be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which was of no public interest in the legal sense, however much it might interest the public.  Therefore, merely reporting of sexual encounters of PJS, with a view to criticising him, did not fall within the concept of freedom of expression under article 10 of ECHR.

With reference to the evidence available, the Court ruled that there was effectively no public interest in the legal sense in further disclosure or publication.  In case the material were published by the English newspapers, it would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by PJS, his partner, and by way of increased media attention now and/or in the future, their two children as well.

Right of Confidence vs Privacy Rights

It is crucial to distinguish between the claims for breach of “confidence” and breach of “privacy”.  For breach of confidence claims, the widespread availability of the information in the public domain might indicate that PJS would face difficulties in obtaining a permanent injunction if his claim was based on confidentiality. 

However, for breach of privacy, the interim injunction could still serve a useful purpose in the present case even though the information had been widespread on the internet.  The Supreme Court indicated that different considerations could have applied to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant. 

In view of the foregoing, the Supreme Court reversed the decision made by the Court of Appeal and ordered for a continuation of the interim injunction to trial or further order.

Conclusion

PJS is an important case as it highlighted the protection of privacy under the laws, even though the subject matter might have already been spread to the public domain.

Important to note, there is no similar precedent in Hong Kong and the recent judgment of PJS has not been applied or cited by the Hong Kong Courts.  Although the Hong Kong Bill of Rights and the Basic Law provides similar provisions in respect of the right to privacy, there are no comparable statutes in Hong Kong to the ECHR and HRA, it is therefore doubtful on whether Hong Kong should adopt the principles in PJS.  In this regard, the PJS case would only have persuasive effects to future cases in Hong Kong.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2016