Supreme Court Justices furnish their decision in celebrity privacy case

1. On 19^th May The Supreme Court gave judgment in the so called ‘Celebrity privacy’ Application (PJS v News Group Newspapers Ltd [2016] EWCA Civ 393) The decision was not one which determined whether the Applicant’s privacy rights should be permanently recognised and protected, rather to regulate the position until the matter is dealt with at trial. The Court was nevertheless called on to consider the merits of the Applicant’s case under the applicable statutory provision; Section 12 (3) Human Rights Act 1998.
   
   
2. The distinguishing feature of this provision is the probative standard it applies to interim applications which affect a Respondent’s right to freedom of expression, requiring the Court to only grant injunctive relief at the pre-trial stage if a claimant is likely to establish at trial that publication should not be allowed as opposed to the standard ‘serious issue to be tried’ threshold for interim relief which applies generally.
   
   
3. At the date of the Application to The Supreme Court (and for some time prior thereto) the identity of the Applicant was widely known. A cursory search of the internet will reveal his identity. It was this availability of the Applicant’s identity in the public domain which underpinned the application of NGN to the Court of Appeal to set aside the injunction which had been granted by the High Court. PJS, the moniker afforded the anonymous Applicant, appealed against the decision of the Court of Appeal that the injunction be set aside.
   
   
4. The split amongst the Justices is an interesting one. On one side the President Lord Neuberger along with Lords Mance & Reed and Lady Hale. The lone dissenter, somewhat ironically, was Lord Toulson. The irony is that he is co-author of the seminal text ‘Confidentiality’ now in its 3^rd Edition so one might have expected that his opinion would have garnered greater weight. In the defence of the majority, as they themselves emphasise in the judgment, confidentiality & privacy are now recognised as distinct and autonomous causes of action in English law and have a distinct jurisprudential basis. Whereas the law of confidentiality is primarily concerned with the protection of secret information, privacy, particularly as this concept has been developed by the European Court of Human Rights, is not concerned solely with secrecy of information as such, rather the right to personal autonomy and the ‘zone of personal interaction’.
   
   
5. The ‘zone of interaction’ in essence is a concept formulated by the ECHR according to which individuals, as part of their Article 8 Rights, should enjoy the right to engage in social and familial interaction even in a public setting without intrusive conduct of a type which infringes Article 8 Rights. Princess Caroline of Monaco (Caroline Princess of Hannover as she now is)  was the beneficiary of the ECHR’s zone of interaction doctrine in Von Hannover v Germany (2005) 40  E.H.R.R. 1 in which the ECHR found that the photographs of the Princess in public with her children, the actor Vincent Lindon and her bodyguard had infringed her Article 8 Rights to privacy.
   
   
6. A later application by the Princess and her sister to the ECHR based on the publication of photographs of them in the company of their late father, Prince Rainer, failed. On that occasion the ECHR held that the Federal Courts of Germany had applied the correct principles in concluding that the conduct of members of Prince Rainier’s family at a time when he was ill qualified as ‘an event of contemporary society’. There was, therefore, a public interest element which magazines in Germany had been entitled to report, including photographs, that supported and illustrated the information being conveyed; see Von Hannover v Germany (No 2) [2012] E.M.L.R. 16].
   
   
7. The majority in PSJ held that on its proper construction Section 12(3) does not afford a higher priority to Article 10 rights over Article 8 Rights. The issue, as with privacy interests at trial, is the balance that has to be struck between the 2 competing rights and to determine which should prevail on the evidence in a given case.
   
   
8. The majority also gave weight to the established distinction between what the public are interested in and what it is in the public interest they should know. Sexual encounters even of the most lurid and morally questionable variety do not, of themselves, raise any public interest issues. To raise such information to the level at which the key element of the public interest is engaged will depend upon the profile of the dramatis personae – that a cabinet minister has engaged in a debauched ménage-a-trois raises public interest issues not engaged by similar information concerning a publicly known figure who does not hold public office, a point aptly exemplified by Max Mosley’s vindication of his right to privacy in respect of his alleged penchant for Nazi-themed bondage sex parties (Mosely v NGN [2008] EMLR 20). 
   
   
9. The simple point may be, though not put so directly in the authorities, that if I and my fellow taxpayers pay your salary we thereby gain the right to information regarding your private, including sexual, life in so far as that raises concerns about the office you hold. Other elements may raise the case to the threshold of public interest rather than ‘vapid tittle-tattle’ as Lady Hale famously put it in one case. A paradigm example is the case of a celebrity who has carefully cultivated an image as a loyal wife or husband and guardian of family values and who is then exposed for sexually compromising conduct. TV celebrity Jamie Theakston’s claim to privacy in Theakston v MGN [2002[ EMLR 398 floundered on this particular aspect of the evidence in that case.
   
   
10. The Majority in PSJ considered that unrestrained by continuing injunctive relief pending trial, the Applicant was likely to suffer prejudice which went beyond the fact that information he intended to be secret would gain even further public exposure. He would, for example, suffer distress as a result of breach of his rights to privacy together with intrusion and harassment both of the Applicant and his family. The majority also, as is an established practice, had regard to third party interests and how they would be affected in the absence of interim protection. In this case it was the children of the Applicant and the effect that the lifting of the injunction would have which weighed in the majority judgment. Concluding that there was no public interest in PSJ’s extra-marital sexual activity, the majority reached the logical conclusion on their analysis that at trial the Court was likely to grant a permanent injunction preventing publication and hence the criteria for interim relief under Section 12(3) was satisfied.
    
    
11. Lord Toulson’s dissent was not based on any view that publication of the disputed information engaged the public interest. He agreed with the majority that the facts engaged no such interest. His dissent appears to largely rely on the requirement at Section 12(4) of the Act that the court have regard to "the extent to which the material has, or is about to become, available to the public’" In his view the story’s confidentiality had become "so porous that the idea of it still remaining secret in a meaningful sense is illusory" and that "the court must live in the world as it is not as it would like it to be".
    
    
12. Lord Toulson appears to have afforded less weight to the effect on third party interests, namely the children of PSJ, than the majority, commenting that they were very young and that there were various steps the parents could take to shield them from immediate publicity.
    
    
13. One should be cautious of interpreting this as indicating that Lord Toulson did not consider that PSJ had suffered a violation of his Article 8 Rights. He indicated that at trial damages might be a meaningful remedy for such breach as had occurred and that exemplary damages might be awarded to deter flagrant breaches of privacy, contrary to what was said by Eady J in Mosely.
    
    
14. It is noteworthy that both the majority and dissenting judgments were at one in disavowing any public interest in the story. The Daily Mail, as the bastion of all that is right and truthful, pointed out in an article the day after the judgment was handed down that PSJ and his spouse have taken advantage of every opportunity the media has afforded them of portraying themselves as a happily married and devoted family unit. The whiff of hypocrisy is there, however perhaps the fact that PSJ is not quite the celebrity figure that his spouse is somewhat dilutes the public interest element. Certainly The Supreme Court found that none existed.
    
    
15. The judgment also raises interesting issues concerning the interface between the law of confidentiality and the law of privacy and the extent to which evidence that may defeat a breach of confidence claim should also defeat a claim based on Article 8 Rights.

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