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?
In reaching its decision, their Lordships argued Court of Appeal had failed in a number of ways, including:
- incorrectly directing itself that Section 12 of the Human Rights Act 1998 affected the weight given to Article 10 (freedom of expression) when balancing it against Article 8 (respect for private and family life). Case law had already established that neither Article 8 nor Article 10 has preference over the other;
- finding that there is no ‘public interest’ at all in the disclosure of “private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved”; and
- It did not have sufficient regard to the “media storm” that would follow publication of the celebrity couple’s identity if the injunction was lifted.
I will now explore the reasons for the Supreme court decision to restore the interim injunction.