W(h)ither privacy?

Social media takes its toll

A result remains awaited from the UKSC’s urgent hearing last Thursday of an appeal against the EWCA’s reversal the previous Monday (PJS v News Group Newspapers Ltd [2016] EWCA Civ 393) of the interim injunction it granted to PJS in January 2016 ([2016] EWCA Civ 100). At issue was NGN’s intention to publish an account of PJS’s extramarital sexual activities.

PJS is married to YMA, both entertainment celebrities, with young children. PJS’s application for an interim injunction in support of his claims of breach of confidence and privacy was initially refused on grounds of the public interest in PJS’s and YMA’s public portrayal of their committed relationship, in light of PJS’s engagement in casual sexual relationships, in which PJS may otherwise have had a reasonable expectation of privacy. On appeal, the EWCA considered the judge – in accepting “commitment may not entail monogamy” – had not explained how the couple’s portrayal of their relationship presented a false image requiring correction. In the EWCA’s own assessment, publication would only supplement, not correct, the public perception. PJS’s privacy and family interests prevailed over NGN’s freedom of expression, a permanent injunction would likely be made at trial, and the interim injunction was made.

The injunction was effective until early April, when accounts of PJS’s sexual activities were published in the USA, Canada and Scotland, and on websites and social media, often naming PJS and YMA. NGN said this was a material change of circumstance, meaning the protected information was neither confidential nor private, and justifying the injunction’s discharge. In reconsidering the matter, while not accepting any greater public interest in NGN’s favour, the EWCA considered the publicity meant it was unlikely PJS would obtain permanent orders. Its current orders had proven ineffective in protecting PJS’s privacy. The EWCA last week set aside them aside, warning publication still risked breach of PJS’s rights. Commentators asserted social media had t(r)olled the privacy injunction’s death knell.

In the UKSC, PJS’s case for reinstatement of the injunction relied on the tort’s dual right to keep information private and freedom from intrusion into private affairs. The latter interest was not nullified by foreign and social media publication, and injunctions should lie to restrain England’s “mercenary” media from its otherwise inevitable intrusion into PJS’s private and family life. (How mercenary may be seen in Popbitch’s identification of the media’s tricks to evade such injunctions, through which lens even so august a journal as the Financial Times may be thought to be walking on thin ice.)

The Hohfeldian ‘right to/freedom from’ analysis illustrates the privacy action’s maturing separation from its breach of confidence progenitor. Compared to the NZ Privacy Act’s relatively anodyne “information about an identifiable individual”, Koops and others articulate from European and North American constitutional protections “A Typology of Privacy” (forthcoming, University of Pennsylvania Journal of International Law, Vol 38, (2016)) – of eight correlative privacy rights and freedoms, each separately existing on a personal to public spectrum – which explains “why privacy cannot be reduced to informational privacy”. Whether or not known at the time, the “ridiculous mouse” of C v Holland [2012] 3 NZLR 672 may find its home behind the skirting boards of that analysis.

[This article was first published in The Capital Letter (39/15, 26 April 2016)]

PS: Interim injunction restored by UKSC (19 May 2016)

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