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Latest celebrity case shows online reporting can undermine case for privacy injunction, says expert

A new ruling by the Court of Appeal in London highlights how the reporting of stories in other countries and the dissemination of those stories online can serve to undermine the case for privacy injunctions against publishers in the UK, an expert has said.19 Apr 2016

On Monday the Court of Appeal ruled (12-page / 715KB PDF) that an interim injunction banning publishers in England and Wales from disclosing the identity of a married celebrity, referred to as PJS by the Court, who is alleged to have had a sexual encounter with two other people should be lifted, pending appeal. PJS has subsequently applied to the Supreme Court to have the Court of Appeal's judgment overturned.

Among the factors influencing the decision of the three Court of Appeal judges in the case was the fact that the identity of the celebrity had been reported by publications in the US, Canada and Scotland and then subsequently repeated online.

The dissemination of this information is "so widespread that confidentiality has probably been lost", the Court said. As well as undermining PJS's claim in breach of confidence against News Group Newspapers (NGN), the widespread availability of the information significantly diminished the likelihood that a permanent injunction would be granted at trial, it said. This, alongside other factors, undermined the celebrity's case for the interim injunction to continue until trial preventing publication of the story in England and Wales, according to the ruling.

With reference to the discretionary nature of an injunction, Lord Justice Jackson commented that it "is in my view inappropriate … for the court to ban people from saying that which is common knowledge".

Media law expert Imogen Allen-Back of Pinsent Masons, the law firm behind Out-Law.com, said the Court of Appeal's decision to discharge the interim injunction did not mean that it was wrong to grant the interim injunction in the first place.

"The issue before the Court of Appeal in deciding whether to discharge the interim injunction was whether recent events, namely the publication of the names of the parties involved in a prominent US magazine and various other publications outside the jurisdiction, including Scotland, as well as on social media, altered the weight which should have been given to PJS’s privacy rights under Article 8 of the European Convention on Human Rights (ECHR), as enshrined in the UK's Human Rights Act," Allen-Back said

"The court also had to consider whether, in light of the recent publications, it was still likely that PJS would obtain a final injunction at trial, the test for which is set out under section 12(3) of the Human Rights Act," she said.

"It is not fatal to a claim for misuse of private information that the information is in the public domain," Allen-Back said. "However, if the information becomes so widely known and accessible by the public, there comes a point where restraining publication no longer serves a useful purpose. Any publisher considering whether to publish a story in circumstances where an interim injunction has been discharged will, however, still need to balance carefully its right to freedom of expression under Article 10 of the ECHR with a claimant's privacy rights."

Allen-Back said that in the case about the celebrity PJS the Court of Appeal had rejected a submission by NGN that PJS's privacy rights were no longer engaged. She said that if the Sun on Sunday, owned by NGN, decides to publish a story identifying the individuals involved, NGN will need to show that there is a legitimate, public interest reason to publish those details, or risk being sued by PJS for damages.

"The Court of Appeal’s decision to discharge the injunction raises an interesting question about the extent to which the courts are able to protect an individual’s privacy rights in today’s world, in which information is freely disseminated and available to all," Allen-Back said. "Some may argue that the media storm which was created by the UK press around this case served to render the protection afforded to PJS by the courts worthless."

"If NGN or other publications decide to publish the story after the injunction has been discharged, a claimant in PJS’s situation would have to seek recourse by suing in damages over misuse of private information. In practice, a claimant might argue that this is an unattractive option, given that the litigation may increase the attention around the event which they were hoping to keep private in the first place. Arguably, damages might not be seen as an adequate remedy for the harm and distress which publication of their private affairs is likely to cause," she said.