The facts – such as they are public knowledge – have been well-rehearsed. Early this year, the Sun on Sunday wished to publish an article disclosing a sexual encounter by one half of a celebrity couple. An interim injunction on publication was sought and granted to protect the couple’s and their children’s Article 8 right to privacy. Inevitably perhaps, the story was then published outside the UK, details appeared on social media, and the press became ever so slightly self-righteous – “these injunctions bring the system into disrepute,” cried the Times, “a farce,” wept the Sun, “write to your MPs”. Blood boiled, freedom was dead, we were urged to fight for our right to salivate over celebrity threesomes.
More soberly, News Group Newspapers argued that the injunction infringed its Article 10 right to freedom of expression and, with the story circulating on the web, no longer served any useful purpose. The Court of Appeal agreed, the couple appealed again, and the Supreme Court stepped in.
Concluding that a permanent injunction would be likely to be granted at trial in the interest of the couple and especially their children, it has today ordered the continuation of the interim injunction. Its reasoning is fourfold.
Firstly, it concluded that (i) neither Article 10 nor 8 have precedence over each other. (ii) Where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied.
Secondly, there was no public interest in a legal sense in publishing the story; every case turns on its fact, but it decided that stories such as this one were “at the bottom end of the spectrum of importance”. Rejecting NGN’s argument that it was entitled to criticise the couple’s conduct, in the Court’s view, “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.”
Thirdly, the Court rejected the argument that the story’s appearance in social media meant the dam had burst. Consideration had to be given to medium and form which the injunction was intended to cover. In this case, press publication would add extensively and in a qualitatively different way to the invasion of the couple’s privacy, and in particular the privacy of their children – an invasion of privacy which was likely to be “clear, serious and injurious”.
Fourthly, the Court concluded that damages would not be an adequate remedy for such an invasion of privacy. Once your privacy has gone, no amount of cash is going to put it back in the box.
In age where the Web has supposedly rendered privacy impossible, the Supreme Court has ruled that injunctions to protect privacy do still have their purpose. The dam may be holed, but where it can, and where there is no public interest in doing otherwise, the law will still plug the gaps.