Privacy Law
A NEW TORT OF
PRIVACY?
In PJS v News Group Newspapers’ Ltd [2016] UKSC 26 PJS successfully applied to the Supreme Court for the continuance of an interlocutory injunction preventing News Group Newspapers (NGM) from publishing, in England and Wales, a newspaper story identifying PJS as a famous celebrity who had engaged sexual activity involving two other people when he was in a civil partnership with YMA (who he married in 2014).
This was despite the fact the identity of PJS and his sexual activity are readily available on the internet and a hard copy of the story had been published in a Scottish newspaper. The Supreme Court allowed the injunction to remain in place by a 4:1 majority. The majority were Lord Mance, Lord Neuberger, Lady Hale and Lord Reed. The dissenter was Lord Toulson. PJS could not pursue a remedy based on a right to respect for his private life in article 8 of the European Convention on Human Rights. This is because section 6(1) of the Human Rights Act 1998 states that It is unlawful for a public authority to act in a way which is incompatible with a Convention right but NGM, as part of the commercial press, is not a ‘public authority’. In addition there is no statute to be interpreted in a compatible way with the Convention as required by section 3 of the Human Rights Act 1998. However, the Convention remains relevant because the Supreme Court is a public authority and it is obliged to develop domestic law in a way which is compatible with Convention rights. This is known as indirect horizontal effect.
to intrusion as newspapers have greater impact and creditability than internet. This points to a tort of invasion of privacy based on intrusion. In his dissent Lord Toulson states that the story is so porous that an injunction is pointless and there is no difference in publication on the internet and in the print media at [86]& [89]. The injunction is not permanent and can only be made permanent after a trial. Section 12(3) of the Human Rights Act 1998 states that no interim injunction is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. A permanent injunction is needed to prevent the tort of invasion of privacy and the Supreme Court majority obviously believes that PJS is likely to establish that at trial.
If NGM published the story there would be no breach of PJS’s article 8 rights by NGM because it is not a public authority but publication could constitute the tort of invasion of privacy by NGM. The purpose of injunction will be to prevent the tort but the trial court as a public authority will have to balance PJS’s right to So the question So the question to ask is what existing wrong would be respect for his private and family life against NGN’s right to ask is what committed if the story was published? The two possible to freedom of expression under article 10 when deciding existing wrong wrongs (or torts) are (i) breach of confidence or (ii) to make the injunction permanent. Section 12 (4) of the would be misuse of private information. These were held to Human Rights Act 1998 provides that the court must separate torts in Vidal-Hall & Others v Google Inc [2014] have particular regard to the importance of article 10 and committed if EWHC 13. But Lord Mance (who gave the leading requires the court to take into consideration whether the the story was judgment) appears to create new law when he says at story is likely to be available to the public, the public published? [32]: interest in publication and any privacy code such as the ISPO code which came into force in January. But section ‘Every case must be considered on its particular facts. But the 12 does not give greater weight to article 10 as ’each right has equal starting point is that (i) there is not, without more, any public interest potential force in principle, and the question is which way the balance in a legal sense in the disclosure or publication of purely private falls in the light of the specific facts and considerations in a particular sexual encounters, even though they involve adultery or more than case’ per Lord Neuberger at [51]. In view of the majority decision in one person at the same time, (ii) any such disclosure or publication the Supreme Court, at trial the balance is very likely to come down in will on the face of it constitute the tort of invasion of privacy, (iii) favour PJS’s article 8 rights because of the intrusion that would be repetition of such a disclosure or publication on further occasions is caused by a print publication (not only to PJS but also to YMA and capable of constituting a further tort of invasion of privacy, even in their children) so that a permanent injunction will be required to relation to persons to whom disclosure or publication was previously prevent the tort of invasion of privacy by NGM. made - especially if it occurs in a different medium.’ Not surprisingly the Supreme Court decision has caused a storm in This creates new law as before this case there was no tort of invasion the print mass media: ‘Arrogant judges and cowardly politicians must of privacy known to the law. This cannot be stated with complete not threaten free speech’ Daily Telegraph 20 May 2016. If the confidence as when Lord Mance is discussing what damages would Supreme Court has got the balance wrong and the law is an ass it be available for the wrong he refers to misuse of private information will be for Parliament to amend section 12 to make it clear greater at [42]. Lord Neuberger (who agreed with Lord Mance) refers to an weight must be given to article 10 rights. individual’s rights in respect of confidentiality and intrusion and whilst By Simon Parsons, the injunction could not preserve the confidentiality of the identity of Formerly Associate Professor of Law at Southampton Solent University. PJS (and of his spouse YMA and children) it could prevent intrusion or harassment at [62] & [63]. Publishing the story in print could lead
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