The “celebrity threesome” injunction is upheld: what does this mean?

This is really about questions of privacy vs freedom of the press.

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The Supreme Court, the highest court in England and Wales, has handed down judgment in a case known only as PJS v News Group Newspapers.

The case concerns an unnamed celebrity couple who wanted their identities protected in the face of the Sun newspaper seeking to publish them.

The injunction, however, was upheld and their identity will remain protected.

How did we get to this point?

PJS initially applied to the High Court for this injunction, who did not grant it. The celebrity couple appealed this to the Court of Appeal, who imposed the injunction.

But after press in the US, Scotland, and other areas outside of the Court’s jurisdiction reported the identity of the couple, the newspaper asked the Court to reconsider the case.

The Court of Appeal lifted the injunction, with Lord Justice Jackson stating, “Much of the harm which the injunction was intended to prevent has already occurred [...] The Court should not make orders which are ineffective.”

PJS and their legal team appealed the decision to the Supreme Court. They heard legal arguments last month but reserved judgment until today.

Despite Lord Mance saying in the judgment that “for those knowing where and how to look the story is accessible within England and Wales”, the Supreme Court allowed the injunction to continue.

They stated that it is relevant to the appeal that the children of the couple are afforded proper protection against further invasions of privacy, pending a full trial, which should not be rendered irrelevant.

What was the Court being asked to decide?

The question is really one of privacy vs freedom of the press. The Court had to decide the competing interests of PJS, their partner, and their children, to a private life, under Article 8 of the European Convention on Human Rights, and the newspaper’s Article 10 rights to freedom of expression.

Claims for confidentiality generally fail where the information has become so publicly accessible that it realistically stops being confidential, because the weight of the Article 8 rights that fall to be balanced against Article 10 rights is then lessened – but not today.

At the second hearing in the Court of Appeal, the Court found that despite PJS’s solicitors’ best efforts to be proactive with those websites publishing the identities, it was a “hopeless task”, and that social media ensured that the identities circulated freely.

They cited polls from YouGov and the Daily Mail which suggested that despite the injunction, a large number of people within the jurisdiction were aware of the identities.

But the Supreme Court disagreed. The injunction will continue until trial of the issue.

Was this a super injunction?

No. A super injunction prevents not only the publication of the subject of the injunction, but also any reporting of the sheer fact that an injunction exists.

If I take out a super injunction, not only can you not identify me, you can’t write about the fact that an injunction exists at all. It’s the Inception of legal injunctions.

So what was it?

PJS v News Group Newspapers is an anonymised privacy injunction.

When a third party sold their story of PJS’s extra-marital sex, the newspaper went to PJS for comment.

At this stage, PJS applied to the court for an injunction preventing the publication of their identity in relation to these details. This doesn’t just prevent that newspaper publishing the details: it prevents any publication within the Court’s jurisdiction (England and Wales) doing so. However, unlike with a super injunction, these publications can report that an injunction exists.

Anyone who flouts the injunction can be held in contempt. It’s not a criminal offence, but it carries a maximum sentence of two years in prison or an unlimited fine.

Members of the public who discuss the case online could also be held in contempt –although a quick search of Twitter before the injunction was lifted showed that this was being flouted with wild and gleeful abandon.

Why should I care?

Although this case is, at least superficially, about a life of celebrity and tabloids and accusations of hypocrisy and infidelity, there are important questions bubbling just below the surface that the Court are trying tentatively to answer.

Can you police the internet? In an age of global media, where jurisdiction boundaries become meaningless in reporting, have we reached a point of no return? Do we shrug our shoulders and say “well that’s the internet for you! It was different in my day”? Well, legally speaking, it would appear not yet.

Olivia Potts is a barrister and law commentator. She moonlights as a cook and writer here: oliviapotts.wordpress.com