PJS v News Group Newspapers Ltd [2016] EWCA Civ 100

In PJS v News Group Newspapers Ltd [2016] EWCA Civ 100 judgment was given by Lord Justice Jackson with which Lady Justice King agreed.The Claimant a well-known person, wanted to stop a Sunday newspaper from publishing an article about his extramarital affairs. The Judge refused an injunction, the main issue of the appeal was had he “properly balanced the competing rights which are in play”. The Claimant issued his notice of appeal on the 18th January which was heard on the 21st January with judgment given on the 22nd January to let the Sunday newspaper editor know what he could publish.

Lord Justice Jackson identified s.6 and s.12  of the Human Rights Act 1998 and Articles 8 and 10 of the European Convention on Human Rights as the relevant statutory materials in this matter.

The Claimant and his partner are well known in the entertainment business and have young children.  The Claimant met AB around 2007 and from about 2009 they occasionally had sex.  AB was in a relationship with CD and after a request from the Claimant, they entered into a three way sexual relationship.  After that, the sexual relationship between the Claimant and AB ended but they remained friendly.

Lord Justice Jackson noted around early January 2016, AD and CD contacted the editor of the Sun on Sunday with details of the earlier sexual meetings with the Claimant.  He wanted to publish the story and the newspapers lawyers contacted the Claimant’s representatives to inform them.

The Claimant considered this an invasion of his privacy and on the 18th January 2016 he applied for an interim injunction to stop the Defendant from publishing, supported by two witness statements from himself and his partner. The Defendant served five witness statements, two from AB, two from CD and one from the editor of the Sun on Sunday who attached to his statement, newspaper and magazine articles with material relating to the Claimant, his partner and children.

The Defendant argued  there

“was relevant ongoing public debate. Publication of the story, it was said, would contribute to that debate. Secondly, the defendant contended that the claimant and YMA had put many details of their relationship into the public domain. Therefore, it was in the public interest that the defendant’s newspaper should publish an account of the claimant’s sexual exploits with others”.

The Claimant disputed the article would be relevant to any public debate. The Claimant’s partner accepted that they had during their relationship engaged in some sexual encounters with others but the basis of their marriage was providing a loving home for their children.

The Judge refused the application for an interim injunction, he rejected the Defendant’s first line of defence but accepted the second line. He did grant permission to appeal with an interim injunction stopping publication for seven days to allow the appeal.

Lord Justice Jackson noted that the Claimant argued the Judge “had incorrectly carried out the balancing exercise of the claimant’s article 8 rights against the defendant’s article 10 rights. He contended that the judge had drawn incorrect inferences from the publicity material exhibited by Mr Kennedy. He denied that publishing details of his sexual encounters with AB and CD would serve the public interest”.

The Defendant raised two additional grounds in support of the Judge’s decision:

  • publication of the material contributed to a debate of general interest; and
  • publication of the material fell within the Respondent’s freedom to criticise the Appellant on matters of public interest.

Lord Justice Jackson noted that Articles 8 and 10 were examined in the case of Campbell v MGN (2004)

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…”

There were two stages for the court to consider, firstly, whether the Claimant does have a reasonable expectation of privacy. Lord Justice Jackson considered he did in respect of the sexual meetings with AB and CD.  Secondly, examine the article 10 rights of the newspaper and assess whether there is any basis for publication in respect of public interest.  Also when using the balancing exercise give consideration to family members who may suffer by the publication of the article.

Lord Justice Jackson considered whether the Claimant was entitled to an interim injunction. He made reference to the case of AAA v Associated Newspapers Ltd (2013) where, in such cases, the role of the court of Appeal is described:

It is now clearly established that a balancing exercise between articles 8 and 10 of the European Convention on Human Rights (‘the ECHR’) conducted by a first instance judge is treated as analogous to the exercise of a discretion. Accordingly, an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach…”

Lord Justice Jackson noted two main flaws in the judgment which allowed this court to reopen the matter.  Firstly, the judge said the Article 8 rights of the children were relevant, which he considered correct, but he had not given an explanation of how he had taken their rights into consideration.  Secondly, the judge found the Claimant and his partner had presented themselves as a committed couple, which did not necessarily mean monogamous but there was a public interest to correct the image they had presented.

Lord Justice Jackson found, from evidence the Claimant and his partner had been a committed couple for a long time and his sexual encounters did not change that portrayal.  He considered that the court should perform its own balancing exercise with no criticism of the judge who had only heard the matter on a Friday evening.

The next issue was had the Claimant and his partner been presenting themselves to the world as monogamous. He continued that “the word “monogamy” has been used in the documents and in counsel’s submissions to mean “faithfulness in sexual matters to one’s partner or spouse”; it has not been used in the original sense of the word, meaning having only one husband or wife”.

He noted  in the Defendant’s bundle there were only two references to monogamy which occurred prior to the Claimant’s sexual relationship with AB. Defendant’s counsel had submitted that the articles stay on the internet forever and it was for the Claimant to correct them when they are false which Lord Justice Jackson considered unrealistic and rejected, observing that

“A person cannot normally be expected to sift through historic material about himself on the internet and to amend statements which have become incorrect”.

He observed that any published article would only reveal the Claimant’s relationship with his partner is open in that he is able to pursue sometime sexual relationships with others. He acknowledged that the Claimant was a public figure.  He referred to the case of Axel Springer 2012 in the Strasbourg Court.The court identified the following six criteria as relevant for the exercise of balancing article 8 rights and article 10 rights where he found (ii) to be relevant.

  1. Contribution to a debate of general interest.
  2. How well known is the person concerned and what is the subject of the report?
  3. Prior conduct of the person concerned.
  4. Method of obtaining the information and its veracity.
  5. Content, form and consequences of the publication.
  6. Severity of the sanction imposed”.

He concluded “that the judge’s decision cannot be supported for the reasons which the judge gave”.

He then turned to the Defendants notice which set out two further grounds in support of the judge’s decision,  “there is a relevant public debate in progress” and was “entitled to publish articles criticising public figures”  Lord Justice Jackson accepted the Defendant was entitled to publish articles criticising those in the public eye and the Defendant had article 10 rights to publish an account of the Claimant’s adultery.  He also recognised the article 8 right of the Claimant to let his sexual encounters remain private.

Claimants counsel contended that the Judge played down the Claimant’s article 8 rights which Lord Justice Jackson considered was for the Judge to decide upon. He considered the Claimant had an expectation that his sexual encounters should remain private and if published would be devastating for him with long lasting effects on his children.  “In my view on any proper balancing exercise, the claimant’s article 8 right to privacy must prevail over the defendant’s article 10 right to publish an account of the adultery”.

He noted that if the case came to trial the Claimant would likely prove that the publication should not be allowed and had satisfied the test in s.12(3) of the Human Rights Act.   With the agreement of Lady Justice King, he found the Claimant’s appeal should be allowed.  He granted an interim injunction against the Defendant publishing, until trial or further order.

The decision illustrates the importance the court places on the rights of the children and to analyse the way the celebrity image is projected to the public.

The person must have set out to deliberately project a false Image.

The court followed the line in a recent Strasbourg case that stories that merely satisfy the public’s curiosity to learn more about a couples private life do not serve the public interest.

The court accepted that commitment does not necessarily entail monogamy something some of the press will find difficult to accept.

The decision was appealed to the Court of Appeal and heard on the  18th April 2016.

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