The “celebrity threesome” injunction should be lifted… but not yet, the Court of Appeal has held.
Ruling in PJS v News Group (celebrity injunction) [2016] EWCA Civ 393 this week, Lord Justice Jackson, Lady Justice King and Lord Justice Simon extended the ban on publication by two days to allow the celebrity’s lawyers, Carter-Ruck, time to lodge an application to the Supreme Court.
The injunction was granted to stop the Sun on Sunday publishing a story about a “three-way sexual encounter” between the claimant, PJS, who is married with two children, and two others, AB and CD. The story has been published online, overseas and in Scotland and Ireland.
Lord Justice Jackson says the starting point for the court was that the original injunction was correctly granted. The question was whether there had been a “change of circumstances” that warranted setting aside the previous order.
He says: “It cannot be permissible for the media to stir up a debate about an injunction to which they are subject and then rely upon that debate as a ground for setting aside the injunction.”
However, he set out seven reasons why PJS was unlikely to obtain a permanent injunction, including that knowledge of the story was not so widespread that “confidentiality has probably been lost”; much of the harm the injunction was intended to prevent had already occurred; whether or not an injunction was granted, it was “inevitable that the two children will in due course learn about these matters”; and the court “should not make orders which are ineffective”.
Amber Melville-Brown, head of Withers’ media & reputation team, says: “Now we can all lawfully revel in the ins and outs of the private sexual life of a celebrity and his partner, while they must endure having their private lives firmly on parade.
“But in fact, we can't, because reporting restrictions remain while the case goes even higher up the court echelons, on appeal. If this case is about a threesome, it is about: (1) how to deal with porous national borders vis a vis internet publications; (2) the impact of a potentially fatal blow on a major protection for the people versus the press; and (3) the extent to which our courts can operate when the public on social media and elements of the press disrespect the letter and the spirit of the law and, via their publications, effectively tell our judiciary that they don't give a fig about their considered decisions, under the guise of free speech.
“If this decision stands, the only way to disincentivise the media from rooting through people's privates with impunity is to hit them hard where it hurts, in their pockets. Those whose privacy continues to be invaded must stand up for themselves and take a stand against the press. And the courts must be robust in using the as yet untested provisions of the Courts and Crime Act 2013, which allows for exemplary damages to be awarded against publishers who are not members of an approved regulator, as that will be the only way left to curtail the wildest excesses of the press.”
.tmb-mov69x69.jpg?sfvrsn=6e6975ed_1)
