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

This blog follows up on my previous post 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, where the injunction was granted to the plaintiff by the High Court to prevent the publication of the fact that he had been involved in extra-marital affairs, including a private tryst with two others. It was granted, in particular, to protect the children of the couple. The initial injunction was lifted by the Court of Appeal, but that decision was appealed to the Supreme Court, and the decision of that Court to leave the injunction in place is a leading judgment which will have great influence on UK law and also in NZ I believe.

The UK media response

The sensational reporting and references to the judgment creating a de-facto privacy law in the UK reveal the ongoing refusal or inability of tabloid UK media to accept that privacy law exists ...

Following the final Supreme Court judgment, the UK media has reacted exactly as it has done throughout this process – by engaging in hysterical reporting about the case, reporting I believe was and is deliberately intended to undermine the order as much as possible. The tabloid media in particular, led by the Sun, howled in protest about the decision and the reporting has been one-sided and self-serving. There have been many references to freedom of expression, the chilling of the media and the need to reveal the hypocrisy involved in such awful sexual behaviour.

To give some examples,

• The Sun reported that the Supreme Court judges have sneered at tabloid readers and ‘created a charter for cheating celebs, especially those with kids. Any caught with their pants down can use the children as a Get Out of Jail Free card.’
• The ruling has been described as ‘sinister’, ‘illogical’ and ‘idiotic’, and the judges as ‘out of touch old duffers.’
• The Telegraph published some nice quotes eg: from a useful QC  who said that: ‘Celebrities who don’t have children will be desperate to have them now, and lawyers will be applying for injunctions left, right and centre.”
• A Conservative backbencher, Philip Davies, has also been quoted saying:  ‘This is an extraordinary and absurd decision.  We have unelected judges making up the law as they go along.”
• The reporting also emphasised that any injunction was pointless because the information was on the internet for all to see – the judges are King Canutes.

Much of this reportage is hilarious nonsense.  The concept of celebs rushing off to have children so they can have private sexual lives is frankly bizarre.  And judges are unelected, as required by the doctrine of the separation of powers, and they do make the law – this is in fact their job.  The sensational reporting and references to the judgment creating a de-facto privacy law in the UK reveal the ongoing refusal or inability of tabloid UK media to accept that privacy law exists and has in fact existed in that jurisdiction for at least 10 years.

We do not have similar powerful tabloid media in NZ, nor do we have such a strong celebrity culture with the attendant interest in kiss and tell stories, but we do have some elements of this. On the whole, I think our media are more respecting of privacy but perhaps if there were more kiss and tell stories available, this might be different. The helicopters hovering over David Bain’s wedding recently do not, I hope, signal the beginning of a trend of the normalisation of such newsgathering methods.

Clarifying the law about suing in privacy

To clarify the law further, 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.   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 the threat of unlawful publication involves.

Sexual behaviour and privacy

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 this) to be behaviour at the very heart of privacy, even if the behaviour is unusual or not mainstream.  Previous decisions of the courts in NZ and overseas have recognised 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, as is whether it involves very rich celebrities who lead luxurious lives most of us can only dream of. There is a problem, however, for celebrities or anyone else who wants to lead a private life, when private information like this somehow gets on to the internet or may do so.

The PJS case was the first time a higher court had dealt with this problem in any detail.

Outcomes of the PJS case

Here, then, are the important outcomes from the case:

The value of 'kiss and tell stories'

First, the Court made it very clear that so-called ‘kiss and tell’ stories are very low value speech  - they are forms of commercial speech, since they are really intended to sell more media output. Although media have a right to report the behaviour of well-known figures in order to criticise them, for there to be any public interest in kiss and tell stories, the stories must contribute to a debate of general public interest in a democratic society, otherwise the protection of the right to freedom of expression will count for little.  Kiss and tell stories have therefore been confirmed as being at the bottom end of the spectrum of importance in terms of speech and will weigh little when balanced against privacy rights.

The value of injunctions in the internet age

Second, the Court answered the question whether injunctions are useless in privacy law in the internet age. The answer was No. The Court said injunctions can still be of practical use because:

• Even in the internet age, not everyone will know how to find a name, or they will need to be directed to do so. In this case, it was suggested that 25% of the population knew, which, the court pointed out, meant that 75% did not, and more did not know much, if anything about the detail.
• The plaintiff’s counsel and the courts can also take steps to get material removed from social media (which they had done here). Geo-blocking of search engines can also be used;
• Even if some publication has occurred, injunctions can protect against repetition of publication and further intrusion. These are seen as perhaps worse than the first publication;
• The injunction in this case was really intended to stop a media storm breaking on the family, particularly the children,  if disclosure was allowed. Therefore its main function was to prevent harassment and intrusion, not so much publication per se. But it had to prevent publication in order to have this effect.

The distinction between the internet and mainstream media

The Court also made a distinction between publication on the internet and in mainstream media which justified why media should be restrained. ‘It is one thing for what should be private information to be unlawfully disseminated: it is quite another for that information to be recorded in eye-catching headlines and sensational terms in a national newspaper…’ ie: media still has more prominence, more influence and more real reach.

Privacy law and law relating to breach of confidence are different

The Court also made clear that privacy law is not like the law relating to breach of confidence when it comes to information somehow being published after an order is made.  Usually if information is leaked and gets into the public arena, this will be grounds under breach of confidence law to seek the lifting of an injunction, because the information is regarded as having lost its confidential nature.  But this is not the approach with privacy, where it is clear it is now possible for information to be published but an injunction may still be seen as of value if it prevents harassment and other forms of intrusion.

What the PJS decision means for NZ law

So after PJS it seems the UK privacy tort protects not only against publication of information, but also against forms of harassment and intrusion.

This is interesting for NZ law, because it suggests that it is not necessary to have two torts as we do (the Hosking tort which protects against invasions of privacy by publication of information, and the Holland tort that protects against intrusion into seclusion). You could instead have one grand tort which does both. It has been suggested in at least one NZ High Court case (Faesenkloet v Jenkin [2014] NZHC 1637) that this is how things should be. NZ law could still go that way because our intrusion into seclusion tort is so new and has not been tested by the Court of Appeal or the Supreme Court.  Having thought about this possibility,  as a media lawyer, I quite like the separation of the two actions, because it encourages a focus on editorial decisions separately from information gathering behaviour, which is a useful distinction for journalists to be aware of.

Professor Ursula Cheer is Dean of Law at University of Canterbury.

She has previously commented on the issues raised above on Radio New Zealand's Nine to Noon programme (1st June), Radio New Zealand’s Media Watch programme (17 April) : A celebrity sex scoop – and a legal ethical quandary, and in this article for Online Insider: Privacy, harassment and press freedom  (24th April)

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.