Out-Law News 4 min. read

Supreme Court backs privacy injunction against the media in celebrity sex scandal case

Supreme Court judges have prohibited publishers in England and Wales from disclosing the identity of a male celebrity who reportedly engaged in an extra-marital sexual encounter with two other people, despite details of the scandal being widely available on the internet.

In a majority decision, four of the five Supreme Court judges said that the privacy rights of the celebrity and his family outweighed the freedom of expression rights claimed by News Group Newspapers in the case. It ruled that the celebrity is likely to win a permanent injunction barring the newspapers from publishing the story at a full trial in the case and, as a result, an interim injunction be reinstated in the mean time.

The Supreme Court's ruling (40-page / 346KB PDF) overturns the judgment of the Court of Appeal in the case last month. The Court of Appeal had determined that the interim injunction should be lifted and cited the fact that the identity of the celebrity had been reported by publications in the US, Canada and Scotland and then subsequently repeated online as factors behind its decision. The celebrity appealed that decision to the Supreme Court and the interim injunction remained in place while the Court considered the case.

Media law expert Imogen Allen-Back of Pinsent Masons, the law firm behind Out-Law.com, said: "This was a really difficult case for the Supreme Court. Often it deals with cases which involve difficult or novel points of law, but in this case it was being asked to decide whether the practical reality was that the information about the celebrity had become so widely known that reinstating the injunction would have been futile."

"The decision to reinstate it acknowledges that an injunction serves another function, namely to prevent intrusion into an individual’s private life in circumstances where the courts have held that there is no public interest justification in publishing information in which that individual has a reasonable expectation of privacy. Regardless of whether the information is accessible to some degree, the injunction operates to protect further intrusion within the jurisdiction. The law will continue to grapple with the global nature of information, which is difficult to contain within territorial or jurisdictional boundaries. It seems highly likely that this type of issue will be back before the courts soon," she said.

The Supreme Court overturned the earlier ruling after determining that the Court of Appeal had made errors of law in coming to its judgment.

In his leading judgment Lord Mance said that the Court of Appeal had overemphasised the weight to be given to freedom of expression considerations and instead stressed that arguments relating to the right to freedom of expression and the right to privacy have to be considered from the starting point that both rights are equal.

Both the right to privacy and to freedom of expression are qualified under the European Convention on Human Rights, which is enshrined in UK law in the Human Rights Act.

Where there is a conflict between freedom of expression and privacy rights there needs to be "an intense focus on the comparative importance of the rights being claimed in the individual case", and "the justifications for interfering with or restricting each right must be taken into account", Lord Mance said. A "proportionality test" must also be applied to each right, he said.

The judge said that celebrity sex scandal stories are "at the bottom end of the spectrum of importance" in terms of ensuring freedom of expression rights are protected. He said there is no public interest, on its own, in reporting those stories despite the fact celebrities' "private sexual conduct might interest the public and help sell newspapers or copy". It may be different if the story contradicts a misleading public impression cultivated by that celebrity, he said.

The Court of Appeal also "focused too narrowly" on the fact that details of the celebrity's identity had already been disclosed on the internet, Lord Mance said. He said the Court of Appeal "did not give due weight to the qualitative difference in intrusiveness and distress likely to be involved in … unrestricted publication by the English media in hard copy as well as on their own internet sites".

"There is little doubt that there would be a media storm," Lord Mance said. "It would involve not merely disclosure of names and generalised description of the nature of the sexual activities involved, but the most intimate details. This would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by the [celebrity], his partner and, by way of increased media attention now and/or in the future, their children."

The Court of Appeal gave insufficient consideration to the potential impact publication of the story could have on the celebrity's children, Lord Mance said.

In reaching its decision the Supreme Court also assessed whether damages that might be available to the celebrity for any unjustified intrusion into his private life stemming from publication of the story about him would represent an "effective remedy" for that breach of privacy rights.

Lord Mance said damages in the case would be "an inadequate remedy" for a breach of privacy caused by "further disclosure and publication in the English media" and that the granting of an injunction might be the only way in other cases too to ensure privacy rights are "satisfactorily protected".

"Damage done by publication of a defamatory statement can be redressed by a public finding at trial that the allegation was false, but an invasion of privacy cannot be cured in a similar way, and for that reason there may never be a trial, whatever damages might be recoverable," Lord Mance said.

Allen-Back said: "If the Supreme Court had upheld the Court of Appeal's decision to discharge the injunction it is likely that an application would have been made to the European Court of Human Rights on the basis that the courts of England and Wales had not offered sufficient protection to the celebrity's right to a private life."

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