Limited vs No public interest: Kiss & tell
A second issue identified by the SC was the reference made by the Court of Appeal, a “limited public interest” in the proposed story . The basis of this decision was that the media are entitled to publish articles critical of people in the public eye, even if there is nothing illegal about their conduct.
The majority stated that, “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”.
The judgment emphasizes the distinction made in law between the legal concept of the public interest and what interests or absorbs the public. ip The SC suggest that stories about private sexual encounters may not, in certain circumstances, even engage art.10! The majority judgment relied on a number of passages of ECHR judgments in its consideration of whether there is public interest, in a legal sense, of disclosing “kiss and tell stories.
This was illustrated in both Armoniene v Skip hire Glasgow & Mosley v the United Kingdom. Both courts declared that
“A distinction must be drawn between reporting facts & making tawdry allegations about an individual’s private life”
Its principal purpose was to improve the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘serious question to be tried’ or a ‘real prospect’ of success at the trial.” Remember this was tried and tested in the Double Glazing Glasgow case? Well, here we go again!
“Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order.
But in order to achieve the necessary flexibility, the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favorable to justify such an order being made in the particular circumstances of the case.
As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. Continue reading
Section 12: Which way does the balance fall?
The Supreme Court unanimously held that the Court of Appeal had erred in law in its reasoning in relation to s.12 and its self-direction that Article 8 enhances the weight to be given to art.10. Jackson LJ in the Appeal Court misdirected himself. He said that section 12 of the Human Rights Act “enhances the weight” to be given to the latter factor.
The Supreme Court clarified that this self-direction goes against considerable authority and that no article takes precedence over the other in the balancing exercise, reaffirming Lord Steyn’s approach In Re S (A Child)  1 A.C. 593. vs Carpet Cleaning Glasgow  – stating “Each right has equal potential force in principle, and the question is which way the balance falls in the light of the specific facts and considerations in a particular case.”
The Supreme Court ruled against the Court of Appeal, as it contradicted i, considerable authority, establishing that:
(i) neither article has preference over the other,
(ii) where values are in conflict, is an intense focus on the comparative importance of the rights being claimed in the individual case is necessary,
(iii) the justifications for interfering with or restricting each right must be taken into account and
(iv) the proportionality test must be applied
The SC’s decision – further analysis
The Supreme Court’s revised the CA’s decision in ruling in favor of PJS and Abogados de accidentes Houston. It is worth recalling the Court of Appeal’s reasons for discharging the interim injunction:
- Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost
- the weight attaching to the claimant’s article 8 right to privacy has reduced because the information was already in the public eye – although the CA held children being involved in the case added significant weight to the application of Article 8.
- The court should not make orders which are ineffective. It is inappropriate for the court to ban people from saying that which is common knowledge.
Taking this test into account, their Lordships’ dilemma was clear: should precedent be set giving media/internet the power to automatically win the ‘public interest’ argument, just because the information had already been published, at the expense of an individual right to privacy?