Celebrity wins court battle to keep identity secret over three-way romp
A celebrity who wants to keep his name out of a newspaper story about extra-marital activities has won his Supreme Court fight.
Justices ruled that The Sun on Sunday should be barred from revealing the identity of the man, referred to in court as PJS.
They delivered a ruling after analysing the latest around of the man's dispute with The Sun on Sunday at a hearing in London last month.
The man had asked the Supreme Court to consider the issue after losing his case in the Court of Appeal.
Three appeal court judges had ruled in April that an injunction barring The Sun on Sunday from naming him should be lifted.
But a panel of five Supreme Court justices has overturned that decision by a four to one majority and ruled that the injunction should stay in place.
The Sun on Sunday wants to publish an account of the man's activities, but the man argues that he has a right to privacy and has taken legal action.
He had sued News Group Newspapers, which publishes The Sun on Sunday, claiming that publication of information about alleged extra-marital activity would be a misuse of private information and a breach of confidence.
Any trial of those claims is likely to be overseen by a High Court judge, who could decide to lift the anonymity injunction after analysing all evidence from both sides.
Four of the panel of five justices decided that there was an "absence on present evidence" of "any genuine public interest" justifying publication of the man's identity.
They said an injunction pending the outcome of any trial was "appropriate" to protect PJS, his partner and their "young children" against "further invasion of privacy".
They said allowing the man's name to be revealed now would be likely to "deprive" any trial of "any real purpose".
Judges have previously said that the man is in the entertainment business. They have said his spouse - named as YMA - is also well-known in the entertainment business. They say the couple have ''young'' children.
The Sun on Sunday had won the first round of the fight over identity in January, when a High Court judge refused to impose an injunction barring publication.
But the man appealed - and two appeal court judges ruled in his favour.
Lord Justice Jackson and Lady Justice King imposed an injunction preventing the newspaper from identifying the man in an article.
Lawyers for News Group Newspapers, publishers of The Sun on Sunday, then asked three appeal judges to lift the ban after the man's identity emerged online.
They told Lord Justice Jackson, Lady Justice King and Lord Justice Simon at a Court of Appeal hearing in London in April that the ban should go because the man had been named in articles abroad - outside the legal jurisdiction of England and Wales - and his name could be found on the internet.
The man opposed the application and said the ban should stay.
But Lord Justice Jackson, Lady Justice King and Lord Justice Simon ruled in the newspaper's favour.
''Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost,'' Lord Justice Jackson said.
''Much of the harm which the injunction was intended to prevent has already occurred.''
He added: ''The court should not make orders which are ineffective. It is, in my view, inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge.''
But the Supreme Court justices came to a different conclusion.
In a summary of their 39-page ruling, the justices said: "It is essential to distinguish between the claims for breach of privacy and for breach of confidence.
"The widespread availability of the information in the public domain may well mean that PJS would face difficulties in obtaining a permanent injunction in so far as his claim is based on confidentiality, but different considerations apply to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant.
"The question is whether the injunction can still serve a useful purpose.
"It is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story.
"Publication in this form is contrary to the interests of PJS's children."
They added: "Rights must be practical and effective. The grant of an injunction is the only remedy of any value to PJS and his family, for whom the invasion of privacy occasioned by further disclosure in the English media, rather than any award of damages, is likely to be the real concern.
"The central issue is whether the trial judge is likely to grant a permanent injunction.
"Balancing all these factors, the majority concludes that PJS is likely to establish at trial that the proposed publication by NGN constitutes a serious breach of his and his family's privacy rights, with no countervailing public interest on the present evidence, and that he is likely to be granted a permanent injunction notwithstanding the internet and social media publication. Accordingly, the interim injunction is maintained."
Five Supreme Court justices - Lord Neuberger, President of the Supreme Court, Lady Hale, Lord Mance, Lord Reed and Lord Toulson, analysed the case.
Lord Toulson had been in the minority and said he would have discharged the injunction.
The background - and thinking behind the majority decision - was outlined by Lord Mance.
"The claimant, PJS, is married to YMA," he said.
"Both are well-known figures and they have young children. Between 2009 and 2011, PJS had sexual encounters with AB, including one three-way encounter which involved AB's partner CD.
"In January 2016, AB and CD agreed to sell the story to The Sun on Sunday, owned by News Group Newspapers (NGN). NGN informed PJS that it would publish the story. PJS issued proceedings to stop publication, and applied for an injunction until trial. This was granted by the Court of Appeal on 22 January and was effective in England and Wales.
"However, in early April 2016, AB got the story published in a United States magazine. PJS's solicitors took steps to ensure that the publication was geo-blocked online so as to restrict it to the United States. The story was reproduced in one other US publication, and in articles in Canada and a Scottish newspaper.
"Details or links also started to appear on the internet and social media in England. PJS's solicitors have been taking steps (they say with some success) to remove offending URLs and web pages. But it seems likely that, for those knowing where and how to look, the story is accessible on the internet from England and Wales.
"NGN accordingly applied to discharge the injunction and on 18 April the Court of Appeal agreed to do so. On 21 April the Supreme Court temporarily restored the injunction pending the present judgment. Now by a majority of four to one it allows the appeal, and continues the injunction until trial."
Lord Mance explained that the 1998 Human Rights Act said a court should not grant such an injunction unless it "is satisfied that the claimant is likely to establish that publication should not be allowed" at trial.
"Under the established case law, the court has to balance the rights of freedom of expression on which NGN relies against the rights of privacy of PJS, his partner and their children, on which PJS relies," said Lord Mance.
"These two rights start with equal weight in principle."
He added: "Taking, first, privacy interests, publication of the story would infringe privacy rights of PJS, his partner and their children.
"Taking, second, freedom of expression, there is no public interest (however much it may be of interest to some members of the public) in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them.
"It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved ... that does not apply here."
He went on: "As to public availability, it is true that the story has been accessible on the internet and social media, but, if the injunction were to be lifted, there would be intensive coverage of the story by The Sun on Sunday (and, there is little doubt, by other newspapers), as well as unrestricted internet and social media coverage, all of which would constitute additional and potentially more enduring invasions of the privacy of PJS, his partner and their children.
"Turning to other factors, if publication were permitted now it would be likely to deprive a trial of any real purpose, since all privacy would by then have been destroyed. Damages after the event, whatever their measure, would be unlikely to give any real consolation or redress to any of those involved."
He said: "Bearing in mind all these circumstances, the court has come to the conclusion that the injunction should continue pending trial, on the basis that: the absence on present evidence of any genuine public interest justifying publication means that a permanent injunction would be likely to be granted at trial, and an interim injunction is appropriate to protect PJS, his partner and their young children against further invasions of privacy, pending a full trial which should not be rendered substantially irrelevant by further unrestricted disclosures of relatively old sexual history.
"The appeal will accordingly be allowed and the injunction restored and continued until trial or further order."