Reed Smith Client Alerts

Authors: Michael Skrein

In January, a celebrity applied for an injunction against an English tabloid newspaper that wished to publish an article about a three-way sexual encounter. This case subsequently went all the way to the Supreme Court, and in a controversial decision yesterday, it ruled that the injunction in the ‘celebrity threesome’ case should not be lifted.

The story so far Back in January, one half of a celebrity couple in the entertainment business (known only as ‘PJS’) applied for an injunction against The Sun on Sunday. He sought to restrain publication of an article about a three-way sexual encounter with two people he had met over the internet.

The injunction was initially refused by Mr Justice Cranston, but the Court of Appeal allowed an appeal and restrained the publication of the identity of the claimant and his partner, and the details of their relationship. The injunction was effective for a time, but in April, an article about PJS’ threesome was published in the United States.

Similar articles followed in Canada and Scotland, and soon the identities of PJS and his partner were being spread globally on social media. The Sun on Sunday went back to the Court of Appeal to ask for the injunction to be lifted on the basis that the information was now in the public domain, and so the injunction no longer served any useful purpose. The Court of Appeal accepted these arguments, and PJS appealed to the Supreme Court.

Yesterday’s Supreme Court decision The Supreme Court (by a 4:1 majority) disagreed with the Court of Appeal, and allowed the injunction to continue pending trial or further order. When considering the effect of the social media and internet disclosures, the court acknowledged that it was required to consider the extent to which the material had, or was about to, become available to the public (section 12(4) of the Human Rights Act 1998).

However, the Supreme Court thought there had been too much focus on those disclosures, and not enough emphasis on the “qualitative difference in intrusiveness and distress” that was likely to be involved if there was unrestricted publication by the English media in hard copy, as well as on their own internet sites. Lord Mance said “[t]here is little doubt that there would be a media storm. 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 appellant, his partner and, by way of increased media attention now and/or in the future, their children.”

The interpretation of ‘the public interest’ was also an important factor in their decision to allow the injunction to continue. The Supreme Court disagreed with the Court of Appeal on this issue, denying that that there was even a “limited public interest” in publishing the details of someone’s extra-marital sexual relations. If there was any public interest, it was at the very bottom end of the spectrum and should not factor in the balance when weighing up Article 8 (the right to privacy) and Article 10 (the right to free speech). Citing several cases in the European Court of Human Rights, the court stated that criticism of supposed infidelity could not be the guise under which the media could disclose kiss and tell stories of no public interest in a legal sense.

Comment The Supreme Court is bound to be criticised for allowing protection for this story to continue. Although many will agree that there was no true ‘public interest’ in the story being published, there will be real questions over whether there was any point in allowing the injunction to remain in place. Anyone who is interested in celebrity gossip has known for months who the injunction was about, and so it is, to a great extent, worthless.

But PJS knew about the widespread disclosures, and still fought tooth and nail to preserve the injunction. He clearly thought it still had value. It is obvious that he is a wealthy man, and maybe he just didn’t like to lose. However, perhaps his determination is an endorsement of the Supreme Court’s view that it is far worse to have the gory minutiae of your private affair splashed over the printed press, TV and internet in your home country, than it is to have names and sketchy details available on foreign websites.

Inevitably though, the Supreme Court will be accused of failing to acknowledge the realities of a connected and globalised media landscape. Public respect for the law could be lost if the appearance is given that it is out of touch with real life. As the dissenting judge Lord Toulson warned, “the court must live in the world as it is and not as it would like it to be.”


Client Alert 2016-135