Professor Ursula Cheer, Dean of Law, University of Canterbury, Christchurch, comments on the PJS v News Group Newspapers case.

Let me just put my head above the parapet and talk about the recent UK privacy case where a married celebrity with children obtained an injunction which prevents the UK media from naming him as involved in a ‘threesome’ romp. The case is PJS v News Group Newspapers [2016] EWCA Civ 393, in which an injunction as granted to the plaintiff to prevent the publication of the fact that he had been involved in extra-marital affairs, including a private tryst with two others. The injunction has been appealed to the Supreme Court, which has reserved its decision: https://www.supremecourt.uk/news/pjs-v-news-group-newspapers-ltd.html.

I do not support the media's position

I say I am putting my head above the parapet because I am going to take a contrary position to this case than has been taken by the media in the UK and indeed all around the world, including in NZ.  The celebrity has been identified in Scotland and in the American tabloid media and the name is now circulating on the Internet. RNZ and other NZ media have also identified the married couple and made much of the fact that the name is circulating on the internet, but have resisted putting the name on the internet themselves. As is well known, I am one of the first to defend media freedom of expression when it is truly imperiled, but I cannot do so in this case.

Nowhere has there been any discussion of the right of privacy at the heart of the case, nor of the reasons why the UK Court of Appeal granted an injunction.

The media has generally howled in protest about the decision and the reporting has been pretty one-sided and self-serving. There have been many references to freedom of expression, the chilling of the media and to the need to reveal the hypocrisy involved in such awful sexual behaviour.  Nowhere has there been any discussion of the right of privacy at the heart of the case, nor of the reasons why the UK Court of Appeal granted an injunction. The only reporting with any connection to the facts of the case itself  has been in relation to one of the arguments accepted by the Court, which was that the children of the marriage would be greatly distressed if the information about their parents was published.  This has been presented by media as the couple misusing their children for selfish reasons and a slippery slope for other public figures to do the same. This is nonsense.

Understanding the law behind suing for privacy

To set the record straight, it is not easy to sue in privacy.  Privacy law in the UK requires a balancing of the right of privacy against any public interest in the story. In NZ, there is a form of balancing too, but the plaintiff has to show first they have a reasonable expectation of privacy and that the publicity given to the information was highly offensive to ordinary, reasonable people. Additionally, both in the UK and NZ, when a person is applying for a privacy injunction that will stop the information coming out (rather than seeking damages after it has been published) the courts are very cautious about granting such an order because it is a strong form of censorship.  So the person seeking the order has to additionally show that if the matter of their privacy went to a full trial, they would probably win the case, before they can get an order preventing anything coming out before the trial. It is stressful and costly to bring a privacy case, and, as some media have gloated, these claims, if media choose to highlight them further without obviously breaching any orders involved, can result in further unwanted publicity with the attendant distress that involves.

Sexual behaviour and privacy law

In this case, the information involved sexual behaviour carried out in private with consent.  Sexual behaviour has been clearly accepted by courts (and I am sure most people would accept) to be behaviour at the very heart of privacy, even if the behaviour is unusual or not mainstream.  Max Mosley, a public figure world-wide due to his involvement in Formula One motor racing, won significant damages against the News of the World some years ago after it published secretly filmed video of him engaging in consensual sado-masochistic activities in private with some prostitutes (Mosley v News Group Newspapers [2008] EWHC 1777 (QB) (24 July 2008)). The Court pointed out that it is not the role of media or the courts to take a moral stand on sexual behaviour carried out in private with full consent. So there is simply no public interest in sexual behaviour per se. Whether we approve of or would engage in it ourselves is irrelevant.

In the PJS case, the media argued that there was public interest in the threesome story because the celebrity was being a hypocrite by leading a life in private that was different from his public life and persona. This is essentially an argument that the media is entitled to put the record straight and privacy law does recognise that argument. In this case, however, the Court found there was no hypocrisy and no false image for the media to correct. This was because the married man was found to be living in an open, but loving and committed relationship in which occasional flings with others were known about and accepted. The spouse of the celebrity did indeed know about the incident and was supporting him in the claim.  The Court also examined past public statements made by the husband about monogamy and found that two brief mentions prior to the married relationship he was now in did not amount to publically supporting monogamy.

the people likely to be most hurt by the story were the couple’s young children

So there was no false image for the media to correct and no public interest in the story. It did not matter that some people (and the media) might not approve of how this couple were living their lives. That was their business, it did not impact on the public, and that is what privacy is essentially about. Because the nature of the relationship was open between the parties, the people likely to be most hurt by the story were the couple’s young children, who had, unsurprisingly, not had the details of their parents sexual lives shared with them. That sounds like a genuine concern to me.

The type of media coverage undermines the decisions of the courts

I see a nuanced and sophisticated decision here that has not been given fair or balanced treatment in the media. If media in the UK think the decision is wrong, it can be appealed. Judges do get things wrong from time to time and a right of appeal can correct this. Instead the decision has been hysterically attacked and misreported by the press. The real hint of hypocrisy is in some media behaviour. What I observe is the refusal by media to accept the validity of privacy laws that are developing throughout the common law world.  I see a pattern where privacy judgments of this kind (there aren’t many) are obeyed by media in the relevant jurisdiction, but then the same media highlight simplistic stories about how bad these judgments are. The same media then make the story about the fact that the names of parties involved in these cases are freely circulating on the internet, thus inviting the inevitable Google search. This has the opportunistic and regrettable effect of undermining the decisions of the courts. Then privacy laws are attacked further because it is argued they are unworkable.

Being famous is the reason for media interest

Let’s just think about this some more. Imagine that your eighteen year old daughter is living in a relationship in London and then breaks up with her boyfriend. He then publishes sexual images from the relationship originally created with her consent, online.  She is shocked and distressed by this. This is cyber porn and throughout the world governments are legislating against such publication, with the enthusiastic support of media. Imagine that your daughter goes to a London lawyer and obtains a privacy injunction against her ex so he has to take the material down and agree never to publish it again.  That sounds entirely appropriate and good. The right thing to do.  But this is essentially no different from the PJS case where the plaintiff’s privacy is threatened and there is no public interest in the private behaviour which is about to be published far and wide, including on the internet.

The commercial reality is that ‘kiss and tell’ celebrity stories sell, and media, under enormous commercial pressure now that their traditional business model appears to be failing, need to have stories that sell.

Media rightly care about and defend freedom of expression and the public interest. But  throughout the UK and NZ, there are hundreds of thousands of injunctions in existence that protect privacy.  In Family courts, for example, hundreds of these orders are made to protect children and adults from the distressing effects of disclosure of private and intimate affairs and to allow family disputes to be settled. Yet media, on the whole, do not seek to overturn those orders, and, if information happens to be online, they do not publish that either, nor do they argue that the law is a farce. That is because those cases do not involve celebrities and public figures.  The commercial reality is that ‘kiss and tell’ celebrity stories sell, and media, under enormous commercial pressure now that their traditional business model appears to be failing, need to have stories that sell. But there is little real public interest in these stories and they are the poorest example to use to argue against a right to privacy.  That is why the reporting around them is so poor and misleading.  That is why I cringe when I see it.  It is irresponsible, it is opportunistic and at the very least, poor journalism.

 The possible knock on effect of attacking privacy laws

If media continue to do this with kiss and tell stories, judges may be tempted to use superinjunctions more to ensure effectiveness, and that would be to the media’s disadvantage. Alternatively, if injunctions become a useless remedy to prevent privacy breaches, plaintiffs might cease to use the publication tort and instead use a form of intrusion into seclusion – they could do this in NZ and the law might develop that way in the UK. So buying photographs that breach privacy from paparazzi might be interpreted as a form of intrusion, as could using paparazzi like methods. Or a nascent tort of harassment might develop further. Such developments would not be good for media either as  newsgathering generally would be impacted.

So I hope the UK Supreme Court keeps the injunction in place at least to the extent that it prevents harassment of the children involved. And I hope media cease attacking privacy laws in this unbalanced manner, and instead, learn to live within them. They are here to stay.

Professor Ursula Cheer is Dean of Law at University of Canterbury.  She previously commented (in less detail) on the issues raised above on Radio New Zealand's Media Watch programme (17 April) : A celebrity sex scoop - and a legal ethical quandary.

Professor Cheer contributed Chapter 16 - "Defamation", and Chapter 17 - "Invasion of Privacy" to the recently published The Law of Torts in New Zealand  - 7th Edition.