On 19 May the Supreme Court handed down judgment in the long-running PJS 'celebrity threesome' case.
It held, by a 4-1 majority, that the interim injunction should stay in place, despite the fact that the claimant has been identified in foreign publications and his identity can easily be found online.
The Court highlighted the distinction between confidentiality (which may now have been lost) and privacy, which is still worth protecting, even if the private information is known to some people. There is "a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage".
The Supreme Court also made clear that there was no public interest, in the legal sense, in the disclosure of "private sexual encounters even if they involve infidelity …, however famous the individual(s) involved".
The Court also provided helpful guidance on the application of section 12 of the Human Rights Act 1998, which has been interpreted by some (including some judges) as giving extra weight to the media's Article 10 freedom of expression right over an individual's Article 8 right to privacy. It made clear that neither right has precedence over the other.
It also emphasised that an injunction "is the only remedy of any value to PJS and his family … rather than any award of damages". The central issue was whether PJS was ultimately likely to be granted a permanent injunction at trial, notwithstanding the internet and social media publication. The Court concluded that he was, given that "the proposed publication by NGN constitutes a serious breach of his and his family's privacy rights, with no countervailing public interest on the present evidence".
In short, this is a hugely important decision which significantly strengthens the legal position of those seeking to protect their privacy. Indeed, it may sound the death knell for the 'kiss-and-tell'.
The brief (and user friendly) summary of the Supreme Court's reasons, and the full 39 page judgment, are both available here.