News

Bring back the Superinjunction

April 21st, 2016

Prurient curiosity, the price of fame and the case of the (no longer) “private” threesome.

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In PJS v News Group Newspapers ([2016] EWCA Civ 100) the Court of Appeal (Jackson LJ and King LJ) was originally faced with an application by a married celebrity who, with the blessing of his spouse, engaged in a threesome outside of his wedding vows. The Court of Appeal decided he could keep this private having  overturned the first instance judgment of Cranston J who refused an (on notice) application for an injunction to prevent The Sun on Sunday publishing the kiss-and-tell story of one of the participants in the ménage-a-trois.

Battered by an unprecedented press campaign (largely The Sun, The Sun on Sunday and Daily Mail) the Court of Appeal this week finally wilted to cries of "its a farce" and said the injunction should be lifted. Jackson LJ was clearly persuaded that the injunction was now futile given the publication of the identity of PJS via several routes (publications abroad and in Scotland) the internet, social media, bloggers.

Accepting the submissions for The Sun that 2 billion people in the World knew who the injunction was about he appeared resigned  that an Order made in the Court of Appeal had been crippled.

This demonstrates that:

  1. The law has not kept pace with either technology, combined with enforcement of orders between jurisdictions with different laws, and,
  2. The courts in the UK need to take some very stiff action in similar future applications to demonstrate its real ability to ensure that the Rule of Law is not thwarted by mob rule. One of those measures (but there are others - see below) is to return to granting superinjunctions.  If ever there was a fantastic advertisement for the return of the superinjunction the PJS case is it.

The injunction downturn after the outing of Ryan Giggs

The courts have been less troubled with privacy injunctions since MP John Hemming decided to use (or abuse?) Parliamentary privilege for the purpose of “outing” Ryan Giggs despite a High Court Judge ruling that Giggs’ injunction should remain in place.  He wasn’t on his own of course – lots of people on Twitter had done the same.

Hemming seeks to justify what he did by saying it was to counter the risk of so many people being imprisoned (which caused him to thwart the Court Order).  But in reality nobody would have been imprisoned. The use of that Parliamentary privilege effectively placed Hemming above the reach of the law. Presumably that's why he did it in Parliament under the shield of privilege rather than for example standing outside on the street and announcing "it's Ryan Giggs" on a placard? Now there’s a subject – being “above the law” as that is precisely what is often levelled at celebrities and sportspeople who seek to protect their private lives.

The price of fame

Since the enactment of the European Convention on Human Rights (ECHR) there has been a frequent conflict between the right to a private life (Article 8) and the right to freedom of expression (Article 10). Courts not just in the UK but in some other European countries, have grappled with applications by the rich, royal and famous engaging their Article 8 rights to protect theirs and their childrens’ privacy. Often the media has opposed such applications seeking to trump the Article 8 rights with arguments under Article 10.  The press, it has been said is the “eyes and ears of society”.

Other factors have started to weigh in the mix when a Court is faced with these conflicting rights, including (but not limited to):

For Claimants: the impact on their children if their Article 8 rights do not prevail.

For Defendants:

  1. The public interest being served
  2. How well known the Claimant is
  3. Whether the Claimant has previously embraced publicity to further his/her career
  4. The need to correct a previous false impression created by the Claimant
  5. The need to report on matters which contribute to an important debate in society

Are these factors not really excuses?

Is a Claimant who uses his or her children as the reason why an injunction should be granted really so concerned about this?  There can be no doubt that nobody wants their offspring to be able to conduct an internet search and read details of their parents’ sex lives in future.  But this is not the first consideration for many an applicant.  In fairness to PJS, for him it may well have been – there was no suggestion of marital deception.

Often it is the case that applicants for injunctions have other goals in seeking to gag stories:

  1. Ensuring their spouses or partners do not find out what they have been up to, and/or
  2. Protecting very valuable commercial endorsement contracts which contain termination clauses in the event of the celebrity/sportsman bringing their product into disrepute.

So whilst it would not be pleasant for the children of some footballers/celebrities to read on the internet of their Dad’s frolicking when they get older (no need for names but it won’t take you long to think of a few), there are other drivers in seeking bans on stories and indeed anonymity.

Defendants are equally adept at coming up with a veritable shopping list of reasons why publication is essential. But the need to publish scandal and gossip which sells is surely the primary motivation.

There are occasions of course when the media do take other factors into account.  So on the wave of phone hacking and the Leveson Enquiry several newspapers apparently decided not to run stories about MP John Whittingdale’s liaison with a dominatrix. Wait for it - the reason we are given by our media is that there was no public interest in the story.  Come on – please let’s keep this real. How is what PJS was up to any more in the public interest than an MP dating a whip-wielding Mistress?

What the public is interested in (particularly in the UK) is a long way off what is in the public interest.  We have witnessed some ridiculous claims from publishers and broadcasters about what is in the public interest over the years. The News of the World once protested that it was in the public interest for the world to read (and of course see) details and graphic images of prostitutes in the act of spanking the outstretched derrière of Max Moseley. What did that have to do with the “public interest”? There is not a scintilla of relationship between the two.  Max Moseley is, or was, in the public eye.  So what? What he elects to do in his sex life is for him to know and not the rest of us.  Why are we (the public) so “interested”?

Your sex life is private – unless you are famous

We then come to the old chestnut of those who have put themselves in the public eye being somehow required to have a higher moral code and adopt some automatic role-model status.  The truth is of course that there is nothing in ECHR which provides a distinction between John Doe and a royal, an MP, a singer, footballer, actor or dare I say reality TV “star”. Article 8 applies to them all equally – or at least it should.  In reality it does not.  It has become fair game for the media to submit that celebrities believe they are invincible, or even “above the law” and that the court should show them that is not the case.

Much of the stinging press directed at convicted former Sunderland FC player Adam Johnson involved highlighting his abuse of celebrity status. Quoting Detective Inspector Aelfwynn Sampson (what a great name!) The Sun reported: “Fame, celebrity and a position of power does not give you the right to break the law in pursuit of whatever you desire.”  It's not fame or celebrity which means you have no right to break the law.  Nobody has that right - not even Bloggers, or Tweeters. Now whilst one cannot have anything but contempt for what Johnson did, and sympathy for his victim and what she has endured, the fact of Johnson’s celebrity status hardly has much to do with his sexual predator status.  Undoubtedly it will have been the conduit for adulation and attention from young female fans who but for his fame may not have been interested in him.  However, prisons in the UK are sadly occupied by many hundreds if not thousands of convicted paedophiles who had no fame, no fortune and no position of power. Whatever Johnson’s issues, they are unlikely to have emanated purely from celebrity.  Reporting crime is undoubtedly in the public interest, but sexual offence cases take place up and down the country every day of the week without being reported. Johnson occupied the front page of the Sun constantly throughout his case and sentencing.  Why was his case more important than any other?  All sexual cases involve victims – none of them any more or less important than others. There is no doubt his case should properly have been reported in the press but no more or less so than any other similar case.   It was only his fame which caused him to attract the “Animal” headline.  We didn’t get to read about the many other “animal” paedophiles convicted in the same week.

That his case occupied so many columns in the media (more so than other similar cases) is symptomatic of the British public – that we crave the gory details of misdeeds of celebrities be they unlawful or simply salacious.

Back to Article 8 and the right to privacy, one would expect that when those who crafted Article 8 of the European Convention on Human Rights they would doubtless have believed that a person’s sex life was an automatic candidate for what can be defined as private.

Had Max Moseley, or Ryan Giggs, or John Terry, PJS or even Adam Johnson for that matter, been outside of the public eye, it is unlikely you would not have read a single line about what they had done.

People have affairs every day.  You don’t read “John Jones from Cwmbran and his wife have split after he admitted sleeping with the bar maid of the White Lion”.  This is because poor old John doesn’t attract the attention of our celebrities.  Not unless his surname was Terry of course! Ah – he’s different because like Giggs he is a footballer – hence the publication of salacious (private) details of their affairs will prompt the public to spend their hard earned cash on buying a copy to read the gory detail.  It is no more in the public interest to read about footballers than John Jones from Cwmbran - but he doesn’t sell newspapers.  Apologies to any John Jones’s in Cwmbran – illustration only! Terry, Giggs, Moseley et al do.  That is the real reason the media want to write about them.

Why should being famous have any greater significance on the application of legal principles?  “He’s a role model…”  Oh come on please: – when a young man gets noticed as a footballer, makes it onto the big stage and becomes famous for what he does with his feet and head with a ball, he hardly signed up to the Magna Carta of role-modelling.  Ditto the wannabee X Factor entrants, Voice singers, or dare I say, Big Brother house participants.  A lot of young people crave fame these days– testament to the extreme lengths some will go to in order to get noticed and selected for the BB house.  Not to mention those intolerable extended selfie sticks you see everywhere. But whether these wannabees’ want the fame for the possible cash rewards (later public appearances/ articles etc.) or just to be on TV for 10 minutes of fame it’s stretching it quite a bit to say if they do get there it comes complete with some automatic role-model obligation.  Even less should it mean that the law is less likely to protect them than someone who is not in the public eye.

It seems that in the good ol’ USA they DO victimise fame.  In defamation cases special rules apply in the case of statements made in the press concerning public figures, which can be used as a defence. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) the court established that for a public official (or other legitimate public figure) to win a libel case in the United States, the statement must have been published knowing it to be false or with reckless disregard to its truth (actual malice).  This might be reasonable for those who have sought public office (politicians etc.) who know before putting themselves forward for such office that it DOES come with a role-model obligation, but not so much for someone who is a brilliant musician or sportsperson who makes it big.

In Axel Springer AG v Germany [2012] 55 EHRR 6 [§91] the Court asked:

How well known is the person concerned and what is the subject of the report?

A distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47).

In PJS the CA considered Couderc and Hachette Filipacchi Associés v France (Application No.40454/07) 10 November 2015.

It raised the same question as that raised in Axel Springer: How well known is the person concerned and what is the subject of the news report? The judgment records:

(i)  Consequences of the classification as a “public figure”

117....The extent to which an individual has a public profile or is well-known influences the protection that may be afforded to his or her private life. Thus, the Court has acknowledged on numerous occasions that the public was entitled to be informed about certain aspects of the private life of public figures (see, inter alia, Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 45, ECHR 2004-X).

Then helpfully, the Court determined that it IS necessary to distinguish between those who put themselves up for role-modelling and those who don’t:

118....It is therefore necessary to distinguish between private individuals and persons acting in a public context, as political figures or public figures. A fundamental distinction needs to be made between reporting details of the private life of an individual and reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example (see Von Hannover, cited above, § 63, and Standard Verlags GmbH and Krawagna-Pfeifer v. Austria, no. 19710/02, § 47, 2 November 2006).

119....Thus, depending on whether or not he or she is vested with official functions, an individual will enjoy a more or less restricted right to his or her intimacy:

Great – so at least we now know that John Hemming MP has less right to privacy than for example…..erm…..Ryan Giggs! The irony abounds! But Hemming cannot complain – the Court went on to explain it’s rationale beautifully:

120....The fact of exercising a public function or of aspiring to political office necessarily exposes an individual to the attention of his or her fellow citizens, including in areas that come within one’s private life.

And lest there was any lingering doubt regarding politicians particularly:

121....Thus, the Court has found in particular that politicians inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large (see, inter alia, Lingens, cited above, § 42).

However celebs didn’t escape:

Furthermore, this principle applies not only to politicians, but to every person who is part of the public sphere, whether through their actions (see, to this effect, Krone Verlag GmbH & Co. KG, cited above, § 37, and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 54, ECHR 2000-I) or their position (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006).

So it appears indisputably the case that the Article 8 rights of politicians and those who seek public office are less than those who do not seek it.

The fallacy that privacy is a law only available for the rich

It has become common for the media and indeed the public to bemoan the ability of celebrities to be able to afford to make injunction applications to thwart publication of private matters. This is convenient and stokes anger (or is that jealousy?).  The public don't like it when somebody with money can use the law to achieve something seemingly outside of the capability of a less wealthy person.  But it is just not true. The ending of success fees payable to lawyers under conditional fee agreements in commercial litigation cases did not extend to defamation and privacy. So the notion that you need to be rich to get a privacy injunction is misconceived nonsense.  They are available to anyone whose privacy is threatened.  ATE policies are still available for such cases indeed one was referred to in the recent Burrell v Max Clifford [2016] case.  It is correct of course that without ATE an impecunious or “normal” Claimant could not risk an adverse costs order, but if there is a proper privacy claim then CFA’s and ATE are still possible and so John Jones from Cwmbran need not be concerned about having to fund his injunction application to prevent the revelation of his romp with the bar maid at the White Lion or even to pay The Sun’s legal costs if he loses. So why are the courts not troubled with applications for gagging orders from the John Jones of this world?

The truth is that “normal” people are not interesting to write about so they don’t face the threat of their misdeeds or sexual preferences being splashed across the front pages of red tops.  Accordingly, “normal” people do not need injunctions.

So the criticism levelled at John Terry, Max Moseley, Ryan Giggs, and many other celebrity applicants who seek injunctions is really down to the public believing that celebrities think they are above the law and abuse their wealth.  Both are misconceptions and they are fuelled by media hype.

These applicants and any other celebrity who makes these applications are simply exercising their rights under Article 8 ECHR and moreover, arguably, they have a greater need to deploy those rights than others in whom the press are just not interested.

Bring back the superinjunction?

Back then to the “private” threesome in PJS.  Let's put aside the somewhat amusing irony that sex involving more than two people may still be private.  Presumably all three or 12 for that matter may allege that each of them had a reasonable expectation that their “party” would remain private amongst those taking part.  Or watching?  Let’s not go there.

Neither PJS, nor his celebrity spouse are politicians. They do not hold public office.  They are in the entertainment industry.  As a result, if between themselves as married adults, PJS and his spouse have, for whatever reasons, agreed that PJS may have sex with others that surely is not something which could ever be a matter of public interest unless they had publicly proclaimed the contrary. It is however without doubt something about which some members of the public will be more than curious and would want to read about.

Perhaps the most telling sentence in the whole of the original PJS Court of Appeal judgment at §33 “The mere gratification of readers' prurient curiosity does not serve the public interest.”

It is almost beyond debate that the public have a prurient curiosity in information about celebrity sex lives.  Arguably it is a craving more than a curiosity.  It is no doubt why the News of the World had such incredibly impressive circulation and readership figures before its demise.

Contrast the legal position then (potentially no publication just to satisfy the salivating public) with the headlines in the Sun on Sunday at the beginning of its “right to know” campaign. After carrying the silhouette (of perhaps PJS?) on its front page it lead on pages 20 and 21 in the Sunday March 21st 2016 edition with: Sex Gag Disgrace.  Under its new “your right to know” campaign, it told its readers “Fury as The Sun on Sunday is barred from revealing celeb ID”.  Then: “They rule that his right to cheat beats your right to know”.

Quoting none other than John Hemming MP (who else?) the report highlights the “leak fear” of PJS and his partner who, despite having had their Article 8 rights protected by a court still fear online exposure.  An (unnamed) source said: “They are on a knife-edge”.

The silhouette of a man’s head appears with a big red question mark on it.  This is precisely why superinjunctions came into existence. It is this stalking-like, hounding, “who is it” which was the foundation for applications not just for anonymity but to prevent publication of the fact of an injunction.  If PJS and his partner were “on a knife edge” despite two of the countries’ leading judges deciding they should be able to keep their sex lives private, they ought to have been given sufficient protection not to have a “leak fear”.

And boy did the press then fuel that fear.  For nearly two full weeks The Sun, pounded us with articles about the injunction being a farce. Publication of the account of one of the parties in the threesome was published in the USA, naming PJS, and then the same was repeated in Scotland.  “Och Aye They Know” was the front page headline in The Sun.  The front page.  That was THE biggest news story The Sun had that day? Really?

The Daily Mail chipped in with the law being an ass.  Front page.  The decision of a court to ban publication of sexual encounters agreed to between partners was THE biggest news that our newspapers in the UK could publish.  It’s hardly any wonder people are now taking news online in their millions and not buying newspapers.

The peppering of the media demand for the right to name PJS was unbelievable. It has brought a court order to its knees.  That cannot be in the public interest. Bring back the superinjunction? If it did come back it would be entirely of The Sun’s own making given these hysteria inducing type headlines and silhouettes.

Of course let’s not forget that PJS and his spouse had every reason to be fearful. Not only would they have worried about The Sun “who-is-it?” / “right to know”/ "gag farce” (pick your day) constant attack on a Court decision in the press, they also had to be very concerned that John Hemming might out them anyway in Parliament – making a complete mockery of Orders in the High Court and Court of Appeal. It appears the Speaker of the House was equally concerned given his decision to warn MPs not to abuse privilege in this way.

The Sun on Sunday champions the public right to know.  In reality, in days when The Independent has published its last edition and young people would not dream of buying a newspaper instead of taking their news on smartphone or tablet, there is an ever increasing need, nay desperation, for publishers to be able to splash top level sexual scandal which does occasionally sell newspapers.  When a Court decides to engage the proper rights of individuals (celebrities or not) to afford protection over the salivating, baying demands of the crowd for a head, the retort comes in the form of “sex gag disgrace” articles.  Somewhere along the journalistic highway someone forgot what newspapers are supposed to publish: news.  Max Moseley’s bum, Prince Harry’s bum, footballer affairs, eating hamsters and PJS’s threesome may sell papers – but they can hardly be described as news.

The media have missed a trick.  There is perhaps one public interest argument which has never been deployed but which would be hugely interesting to see a Court adjudicate upon:

“My Lord, on behalf of the Respondent I submit that if the sort of salacious gossip and scandal stories we wish to publish in this case continue to be thwarted by Article 8 rights, we will all go out of business. You see our public likes to buy this smutty tittle-tattle. We do publish news as well and play an important role in society.  For those reasons, we need to be kept alive, as that really is in the public interest.  It maybe, given the threat we face from online news providers that the only way of ensuring our survival is for us to be able to publish some juicy, scandalous, sexy pictures, texts, social media posts and details of how the Claimant went like a train 6 times that night. For all those reasons I submit, nay plead, that you ignore the Claimant’s Article 8 rights, uphold our Article 10 rights and allow us to publish all of what the Claimant John Jones of Cwmbran did with the barmaid of the White Lion”. 

Of course the Judge might ask if the Defendant wishes to name the Claimant.  I’d be interested to know the answer if it was John Jones of Cwmbran.  “We don’t really care My Lord” might be the likely response.  Ah but hold on…. if it were not John Jones and it was he who is PJS…. not only would we care, but if you don’t allow us to name him we will run a full scale campaign for weeks referring to the law as an ass until we can name him.  So this isn’t about Courts enforcing the law anymore and using statute to determine what should happen.  If enough of a storm brews, generated by silhouette “who is it” stories, claims of a farce, the law being an ass, bloggers willing to face contempt because they believe the Order is wrong, then the Court of Appeal holds its hands up in despair, announces that its previous order, which it presumably must have considered was the correct application of the law, has been thwarted by what has happened outside of the UK and on the internet.

Whatever next.  Will murderers convicted stand up and tell the Judge that they don’t agree with his order so they are not going to prison?  Do Judge’s have no role to play in society now?  If they make what newspapers or others online think is a bad decision do they change their minds because of what can happen abroad or online which means that the children of PJS will find out anyway?  "In my view, whether or not the court grants an injunction, it is inevitable that the two children in due course will learn about these matters," Jackson LJ

Great.  Translation:  “You had Article 8 rights to a private life but if the court thinks the world will find out about your private life anyway, whether or not that is in the public interest, this court will not protect those rights – even to stop anyone who doesn’t know, from knowing your private information.”

The Supreme Court has not yet determined an appeal against the injunction being lifted. PJS’s  Leading counsel, Desmond Browne, has said that a defeat "may be treated as the death of the celebrity privacy injunction”.  “Hooray” would proclaim the red-tops and Daily Mail.  “Hooray” may say the public salivating to know the gory detail. “Hooray” no doubt by the other party involved in this threesome who wishes the story to out.  We don’t know if he is being paid by anybody for his “story” – but we have a right to know don’t we?  Hey, it’s in the public interest to know if the press pays people to sell private information – just ask Lord Leveson.

Well, nobody ought to be shouting Hooray too loudly here.  What this case has proven beyond all doubt is that future applications for injunctions will now need the following:

  1. Service of the application not only on the media but on the person who wishes to tell the story. The application seeking an order preventing that person from revealing the private information anywhere – be that in the UK, online or anywhere else in the world. The court can impose such order if it considers it appropriate under Article 8. That would prevent that person from giving interviews in America, Scotland or anywhere else failing which he or she would be in breach.
  2. The hearing should be completely in private to ensure that nobody other than the parties and their lawyers can be present. This suggestion may cause outrage – but if media hype, jurisdictional issues, and/or internet abuse can thwart Court orders then the Court should take whatever steps necessary, and however draconian, to ensure its orders are complied with.
  3. A superinjunction will be needed in every case where the Court decided it appropriate to protect a person’s Article 8 rights, as it did in PJS. The applicant will be able to cite PJS and what followed it as a reason why a super injunction is needed.  Without it, the order will be attacked and rendered useless.

These provisions would prevent a situation arising where “everyone knows anyway” and that being a reason to lift an injunction.

There will be a person – probably but not necessarily wealthy – who will in the near future, and in light of what has happened in PJS decide to instruct lawyers to make the above applications.  2 weeks ago such an application would have had no prospect of success at all. Now, thanks to articles abroad, bloggers, the internet and the bombardment of “farce” articles in the national media, there is a girth of evidence to present to the Court to demonstrate that these provisions are critical if the Court is ever to have any credibility ever again in these cases.  The price of naming PJS (if he is named) may be far greater for the free press than it bargained for.


Mark Manley, Manleys Solicitors

© Mark Manley 2016