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PJS v News Group Newspapers Ltd: Dissenting judgement of Lord Toulson.

May 27, 2016

In the dissenting judgement handed down in the Supreme Court by Lord Mance, all the Justices apart from Lord Toulson agreed with him. Lord Toulson disagreed with the majority of the Supreme Court. He considered that the injunction granted by the Court of Appeal should not have been reinstated.  In his observation of Lord Mance’s summary of the facts he added that there had been many twitter hashtags which had led to the Claimant being easily identifiable. He agreed with Lord Mance that it was wrong for the Court of Appeal to have considered s.12 of the HRA enhanced the weight to rights under Article 10 in the balancing exercise with the Article 8 rights of the Claimant but he considered that the Court of Appeal were correct when they clearly set out the interaction between Articles 8 and 10.

He did not agree with the other criticisms of the Court of Appeal by Lord Mance in his judgment

  • “that it wrongly referred to “limited public interest”; that it applied a quantitive test to the level of disclosure which there had been, thereby overlooking the invasiveness and distress which the proposed publication would entail; and that its decision involved a failure to ensure that PJS’s privacy rights were practical and effective”.

He referred to the seven reasons given by the Court of Appeal in their judgment as to why a permanent injunction would not be granted which he said were not affected by the Defendant publisher’s suggestion that there was public interest in the story being published, He said the reasoning was more to do with what would follow from the information becoming public.

He considered that in applying a quantitive test, under s.12(4) of the HRA the Court must look at how far the information that cannot be published under the injunction will be available to the public. He noted the Court also looked at the effect on the Claimant and the children in the midst of further disclosure from recent events.

He considered that it was correct for the Supreme Court to assess whether the injunction should remain in place because publication of the Claimant’s identity would be a breach of his Article 8 rights and that even though there would be public interest in the private lives of celebrities, they are entitled to the same respect for their private lives as anyone else unless disclosure would be in the interests of the press acting as public guardian.

As to s12(3) of the HRA, the court must be satisfied the application can show that publishing the story should not be allowed, this required more than the applicant contending that this would be in breach of his rights. He considered the Court of Appeal had identified this as an important point, reaching the same conclusion and reasons as they did.

He viewed the story’s confidentiality as being so widely leaked that it could not remain secret, it had lost any confidentiality and the Court should live in the world as it is, not how they would like it to be. He referred to Lord Jackson in the Court of Appeal, “[i]t is in my view inappropriate (some may use a stronger term) to ban people from saying that which is common knowledge”.

He referred to s 12(4)(a)9i) of the HRA where the court had to take into consideration, in respect of the injunctive relief being sought, how much the information had become available to the public or was about to.  He considered the court should see how generally available the information is, from whatever source, for the purpose of an injunction being granted where that information is widely known and where widely available.  It did not make any difference whether the publication was on the internet, printed or broadcast,

  • “The world of public information is interactive and indivisible”.

His did not think the story would go away even with an injunction and referred to the Court of Appeal regarding the children that, eventually they will learn about these matters. He considered that the parents would have this eventuality covered.

He referred to the case of Editions Plon v France which Lord Mance had referred to relating to the publication of a book after the death of President Mitterand by his doctor. An interlocutory injunction was granted, the doctor was fined and given a suspended sentence, the widow and children were awarded substantial damages with subsequently, a permanent injunction. The Strasbourg court held the temporary injunction was correct because publication occurred too soon after his death and the family were grieving but the permanent injunction did not satisfy all the requirements, in particular because of all the other remedies ordered and the story was readily available on the internet.

Lord Toulson noted the facts were very different to this case but the court had looked at the matter very differently.  They had taken a completely different stance to permanently banning publication for information that had been widely available on the internet whereas the temporary injunction had been granted for a specific reason and limited purpose.

He made two further observations, where adequacy of damages is a reason to refuse an injunction, it could not be said that inadequacy of damages would be a reason to grant an injunction which is not appropriate.

He also did not consider that the trial would be irrelevant if the injunction was not granted.

As to damages, he did not consider the decision in Mosley that exemplary damages could not be awarded where there is breach of privacy was the last word on the subject as there would always be the possibility that other courts would rule such an award was necessary to deter people from committing outright breaches of privacy and give protection to that person.He dismissed the appeal.