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Voyeurism is not the public interest

27 May 2016

The Supreme Court’s decision on ‘PJS’ upholds rights to privacy, and might even raise standards, says Shiranikha Herbert

THERE has been a good deal of emotional outrage in the popular press about the decision of the Supreme Court on Thursday of last week, which has been anonymised as “PJS v News Group Newspapers Ltd. Some of the outrage is directed at what is seen as a judge-made law of privacy. The rest mostly focuses on the freedom of expression enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

English law has, however, also developed a genuine entitlement to personal privacy, largely based on the right to private and family life contained in Article 8 of the Convention. Individuals can seek to enforce their rights to privacy, as PJS is doing. At the same time, the press emphasises its own right to freedom of expression. The question that the courts often have to face is which of the two rights prevails on the particular facts in question.

In its most edifying form, the right to freedom of expression is an essential feature of a democratic society. Political corruption, hypocrisy, and mendacity need to be exposed by a free press in the interests of the public, and this will not yield to the right to privacy of an individual politician or someone holding public office.

The press’s right to freedom of expression morphs into a right for the public to know the subject-matter of the disclosures. Although the identities of the individuals involved in the PJS case have not been made public, they are, however, evidently not politicians: otherwise, that would have been mentioned.

Nor are they described as having done anything unlawful, although the press is entitled to criticise conduct that is not illegal. The question then arises whether the public has a right to know the identity of the individuals involved, or whether their identities are a matter of public interest.

PJS is in the entertainment business, and is married to a well-known person in the same business. They have young children. In 2007 or 2008, PJS met AB, and from 2009, they had occasional sexual encounters. AB had a partner, CD. In 2011, PJS asked AB whether CD was “up for a three-way”, to which AB replied that CD was. The three then had a three-way sexual encounter, after which the sexual relationship between PJS and AB ended.

In early January 2016, AB and CD approached the editor of The Sun on Sunday, and told him of their sexual encounters with PJS. The editor notified PJS that he proposed to publish the story. PJS immediately issued proceedings against News Group Newspapers Ltd (NGN) for a permanent injunction to prevent publication, on the grounds that the publication would be unlawful as a violation of his legal right to privacy, and a misuse of his private information.

Because a permanent injunction can be granted only after a trial, NGN would have been able to publish the story in the mean time. Therefore PJS also applied immediately for a temporary or interim injunction to restrain NGN from publishing the story before the trial.

On 22 January, the Court of Appeal granted the injunction preventing publication of the relevant names and the details of the story. AB then took steps to have the story published in the United States. On 6 April, an American magazine published an account of PJS’s sexual activities, and named those involved.

PJS’s solicitors restricted publication to hard-copy editions only, and “geoblocked” online publication, restricting it to the US, and took steps wherever possible to remove offending information from URLs and web pages. Apart from one further publication, the story was not taken up in the US, but similar articles followed in Canada, in a Scottish newspaper, and on numerous websites.

English and Welsh newspapers then published complaints about their own inability to publish material that was available on the internet. The Sun on 10 April called on “our loyal readers to help end the farce that means we can’t tell you the full story of the celebrity father’s threesome” by writing to their MPs “to get them to voice the public outcry in Parliament and bring an end to this injustice”. It set out a suggested form of letter.

By 11 April, an MP was proposing to name PJS in Parliament, but was prevented by the Speaker’s intervention. A survey suggested that 20 per cent of the public already knew who PJS was, while others knew how to find out.

On 12 April, NGN applied to the Court of Appeal to set aside the interim injunction granted on 22 January, on the grounds that the protected information was now in the public domain, and that the injunction therefore served no useful purpose, and was an unjustified interference with NGN’s own right to freedom of expression. On 18 April, the Court of Appeal lifted the injunction, but continued it, pending the appeal to the Supreme Court.

BY A majority of four to one, the Supreme Court continued the injunction. Lord Mance said that “the mere reporting of sexual encounters of someone like PJS, however well known to the public . . . does not even fall within the concept of freedom of expression . . . at all,” but “if in principle Article 10 was capable of protecting any form of expression . . . this type of expression is at the bottom end of the spectrum,” compared, for example, with freedom of political speech, or conduct bearing on the performance of a public office.

The decision would probably give rise to legitimate debate on the value of injunctions in the internet age. The court was well aware, Lord Mance said, of the lesson that King Canute gave his courtiers. But, “unlike King Canute, the courts can take steps to enforce its injunction, pending trial.” If the portrayal of the law as an ass was “the price of applying the law, it was one which must be paid”.

Invasiveness and distress were involved, even in the repetition of private material that had already been published, Lord Mance said. The media storm that discharge of the injunction would “unleash” would add a different and “more enduring dimension” to the existing invasions of privacy being perpetrated on the internet.

Privacy is not the same as confidentiality. If information that has been given in confidence has already made its way into the public domain, the value of the confidentiality has been lost, and the courts recognise that the cat is out of the bag, so that granting an injunction would be pointless, Lord Mance said.

The Spycatcher case, in the early 1990s, was a good example. Privacy is different. The courts recognise the intrusiveness and distress involved in a breach of privacy, even in the repetition of private material. PJS’s case dealt with privacy, not confidentiality.

Lord Mance noted that, although the names of the individuals were available in certain foreign publications, and indeed on internet sites, still the publication of those names in hard copy in English newspapers, no doubt followed by further intrusion in social media, would or might have intensified the distress.

The Supreme Court also emphasised that PJS’s minor children had privacy rights and interests, which were at risk if the injunction was lifted.

IT WAS important that the appeal was concerned with an interlocutory injunction, not a final order. This may seem a technical distinction, even a trivial one; but the distinction is a real one. An interlocutory injunction is made near the beginning of the legal process, to preserve the status quo between the parties, pending final determination of the case.

It is generally made solely on the written evidence of the party applying for the injunction. That evidence is not tested or challenged in cross-examination. If the interlocutory injunction in the PJS case had been lifted, the ensuing publicity would make it harder to justify a permanent injunction when the matter came to a full trial. This would obviously prejudice PJS.

THOSE factors go much of the way towards explaining the Supreme Court’s decision. But, in fact, the majority went further when discussing the balance between the press’s right to freedom of expression, and the individual’s right to privacy. This turns on the concept of public interest.

There is a public interest in examining corruption in high places. But is there a public interest in other people’s sexual practices? Essentially, the Supreme Court’s answer to that question is no. The public interest is not to be equated with public voyeurism and a desire to read about tawdry behaviour.

The press is largely correct in equating, or nearly equating, the right to freedom of expression with the public’s right to know. The public knows much of the information already, the argument goes, and it therefore has the right to be told the rest, and the newspapers have the right to do the telling.

There are two answers to this. First, the public interest does not include a right to know the details of other people’s sexual practices.

Second, the true question is not the public’s interest in knowing the facts, but, rather, whether newspapers have a right to disclose the details in the public interest, in a way that overrides the individuals’ right to privacy. And, if knowledge of the details is not in the public interest, in the legal sense of that phrase, then the right to privacy prevails. Ultimately, the public’s right to know is not the same as the newspapers’ right to tell them.

One of the most important parts of this judgment, by the highest court in England and Wales, is the revelation that there is no public interest in sexual tittle-tattle about celebrities. Might this, by any chance, improve the standard of popular journalism and the attitude of its readership? If so, it should be welcomed, even ultimately by print journalists themselves.

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