Content Regulation / Censorship, Privacy, Data Protection and Retention
Gazeta do Povo v. Baptista et. al.
Closed Mixed Outcome
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The Supreme Court in a majority decision of 4 to 1 granted permission to appeal to PJS, a well known entertainer, holding that PJS was likely to succeed at full trial and that the interim injunction that was at issue should remain in place as it was the only remedy of any value to PJS and his family to protect their privacy that was at risk from further disclosure in the English media.
PJS and YMA were both well-known individuals in the entertainment business who were married and had two young children. From 2009 to 2011 PJS had a sexual relationship with an individual identified as AB, and on one occasion, with AB and AB’s partner identified as CD. In January 2016 the editor of a newspaper Sun on Sunday, published by News Group Newspapers (“NGN”), notified PJS that he intended to publish AB’s account of their relationship. PJS immediately initiated proceedings claiming that publication would breach his article 8 privacy and confidentiality rights as enshrined in the European Convention on Human Rights (‘ECHR’).
The High Court rejected the application but the Court of Appeal allowed PJS’s appeal and granted an interim injunction restraining publication of any information revealing details of the sexual relationship or the identity of PJS.
In April 2016, a magazine in the US published the story of PJS’s sexual activities and identified all those involved. This was followed by similar publication in Canada and Scotland and on numerous websites. Therefore, NGN applied to the Court of Appeal to set aside the interim injunction arguing that it was no longer justified since the information it restrained had fallen into the public domain and PJS was therefore unlikely to obtain a permanent injunction at trial. Furthermore, NGN contended that the injunction was an unjustified interference with NGN’s article 10 freedom of expression rights.
The Court of Appeal agreed that the injunction should be discharged. On appeal the Supreme Court restored it pending determination of PJS’s application for permission to appeal.
Lord Mance delivered the majority judgment with Lord Neuberger, Lady Hale and Lord Reed concurring. The Court held that the Court of Appeal had erred in its reasoning in relation to section 12 of the Human Rights Act (HRA) when it held that section 12 enhanced the weight which article 10 carried in the balancing exercise and raised the hurdle that a claimant needed to overcome in order to obtain an interim injunction. Rather, the Court held, neither article takes preference. Where their values were in conflict it was necessary to focus on the comparative importance of the rights being claimed in the individual case, take into account the justification for interfering with or restricting each right, and apply the proportionality test.
It was also held that the Court of Appeal erred in relying on the point that the media is entitled to criticize the conduct of individuals even where there is nothing illegal about it. This is true, but, Lord Mance held, “criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense.” [at para. 21] Therefore, the Court added, it may be that in the circumstances, regardless of how well-known the appellant is, reporting his sexual encounters for criticism may not even fall within the concept of freedom of expression under Article 10. Even accepting that Article 10 protects any form of expression, this kind of case would be at the bottom end of the spectrum of importance.
The Court held that each case needs to be considered on its own facts and the starting point should be that there is no public interest in the disclosure or publication of purely private sexual encounters even when they involve infidelity. Any such disclosure would on its face constitute the tort of invasion of privacy. However, whether or not an interim injunction should be granted to stop an anticipated invasion of privacy has different considerations. In particular, courts must apply Section 12 of the Human Rights Act 1998 and be satisfied that the applicant is likely to establish at trial that publication should not occur. Further, due regard should be had to the right to freedom or expression and the right to respect for privacy as well as, if related to journalistic material, the extent to which the material has or is about to become available in the public (in terms of medium and form), and the extent to which it is or would be in the public interest to have published.
It was held that the Court of Appeal had focused too narrowly on the Internet disclosures already made without giving due regard to the qualitative difference in intrusiveness and distress to the appellant, his partner, and to a greater degree their children, that would result from unrestricted hard copy publication in the English media.
Lady Hale’s concurring judgment highlighted the fact that children had their own independent privacy interests and rights to respect for their family life. She held that any court considering whether to grant an interim or permanent injunction had to have, according to Section 12(4)(b), “particular regard” to “any relevant privacy code” and the Independent Press Standard Organisation’s Code, which came into force in January 2016 was relevant as it provides that “editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of [children under 16].” [at 36 and 72] The Court held that there was a qualitative difference between unrestricted exposure in hard copy media and on the Internet, and Internet exposure that the appellant was making every effort to restrict.
With regard to an effective remedy, it was held that in this case, there was “no urgency about any publication, as well as no evident contribution to any debate of general public interest.” It was recognized that refusing to grant interim injunctions could be a disincentive to respecting private lives and that in certain circumstances it may be the only effective way to protect privacy rights. However, it was held that on the facts of this case, in particular, the nature of the material sought to be published and the financial circumstances of the appellant, the real concern was with the invasion of privacy that would involve further disclosure and publication. Therefore, an award of damages would be an inadequate remedy.
The Court concluded that at trial the appellant was likely to establish that disclosure and publication would involve clear, serious and injurious invasion of privacy for the appellant, his partner, and his children. The Court recognized that it may be “criticized for giving undue protection to a tawdry story” by reinstating the injunction especially given as further Internet and social media publications may make it seem futile. However, it was held that the legal position was clear, and that the appeal should be allowed. Therefore, a continuation of the interim injunction until trial was ordered.
In the sole dissenting judgment, Lord Toulson held that Section 12 (3) of the HRA, which states that pre-trial restraint on publication should only be allowed if the applicant is likely to establish that publication should not occur, requires more than simply proving that publication is likely to breach his or her rights. It must be proved that there is a likelihood a permanent injunction will be obtained. Further, once information is widely available then the legal landscape changes. Section 12(4), which considers the extent to which the material at issue has or is about to become available to the public, is aimed at discouraging granting injunctions to prevent publication of information that is already widely known. Lord Toulson felt that the inadequacy of damages as a remedy was not then a good reason to grant an inappropriate injunction. For these reasons he would have dismissed the appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
On the one hand, this judgment protects the privacy of individuals against the publication of private matters that are not in the public interest. On the other hand, it restrains the publication, or rather, re-publication, in England and Wales of information that was already widely published in other jurisdictions and online. The Supreme Court pays due consideration to this conundrum but decided that the law as it stands must be applied, and the injunction maintained.
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Judgments of the UK Supreme Court set binding precedent in the country.
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