On 19 May 2016, the UK Supreme Court handed down judgment in PJS v News Group Newspapers Limited. This decision concerned the proposed publication of details concerning the extramarital activities of PJS, an individual in the entertainment industry married to a well-known celebrity.

News Group Newspapers (“NGN”) had notified PJS that it proposed to publish details of his extramarital activities in the popular UK tabloid newspaper The Sun on Sunday. PJS brought proceedings against NGN for breach of confidence and misuse of private information, and applied for an interim injunction to prevent publication until the determination of PJS’s claim.  This application was refused at first instance but the Court of Appeal overturned that decision, granting the injunction.

Subsequently, details of PJS’s activities, and the names of the parties involved, were published in the USA, Canada and Scotland (where the injunction had no effect), and circulated on social media. NGN therefore applied to the Court of Appeal to set aside the injunction, on the basis that the information at issue had entered the public domain. The Court of Appeal agreed. However, by a majority of 4-1, the Supreme Court ordered that the injunction continue until trial or further order.

It is impossible to consider all the interesting aspects of the Supreme Court’s judgment here.  However, one important point (on which the Court divided) was their Lordships’ treatment of the publications that had occurred since the granting of the injunction by the Court of Appeal.

The Court had to grapple with two competing rights under the European Convention on Human Rights (“ECHR”)—article 8 (right to respect for private and family life) and article 10 (freedom of expression). At domestic level, section 12 of the Human Rights Act 1998 (“HRA”) was also engaged: this introduces further factors for courts to take into account where relief is sought that could affect the exercise of freedom of expression.

Under section 12(4)(a)(i) HRA, the Court was required to examine the extent to which the relevant information was already publically available. All members of the Court drew a distinction between claims in privacy and those in confidentiality. Claims based on respect for privacy and family life didn’t depend on confidentiality alone, but also on “intrusion”.  According to the majority, the intervening publications, although at least substantially undermining a claim in confidentiality, had not substantially reduced the strength of PJS’s claim in respect of the latter: there was a “qualitative difference” between the distress and intrusiveness caused by the intervening publications, and that inherent in “what is now proposed by way of unrestricted publication in the English media” (at [35]).

However, Lord Toulson, in his dissenting judgment, argued that “the world of public information is interactive and indivisible” (at [89]). According to him, the court had to “take into account how generally available the information has become from whatever source, be it broadcast journalism, print journalism, the internet or social media” (at [89]). He cautioned against the court losing public respect for the law “by giving the appearance of being out of touch with reality” (at [88]).

Although Lord Toulson dissented from the majority’s conclusion, the gulf between them is perhaps not as significant as it may appear. All members acknowledged the intrusion and distress that can be caused (with the consequent violation of article 8 ECHR) by publication of information, even where it is no longer confidential in any meaningful sense given its general availability. More concerning is the majority’s failure to confront modern trends in communication. Publications in individuals’ tweets and Facebook posts now have the ability to reach vast audiences, surpassing those of many press publications. Equally, there are no “quality” standards governing such publications comparable to, for instance, IPSO’s Editors Code of Practice applicable to the majority of major UK news publications (though of course, the question of whether there should be such standards is another matter). The ease with which the majority was seemingly able to overlook such facts and to draw bright line distinctions between the effects of publication in different media may give rise to future difficulties.