On the 22 January 2016, the Court of Appeal granted an injunction to ‘PGS’, allowing their identity to be kept a secret and to not be published by Newsgroup Newspapers (NGN). The secret to be kept was that ‘PGS’, married with kids, had participated in a threesome. One other participant managed to have the story published in the USA in early April of 2016. Despite attempts from the celebrity’s lawyers to keep the story restricted to the one paper in the US, the story was nevertheless reproduced in Canada, and in one Scottish newspaper.
The story then began to show up on UK websites and web links, meaning that for those knowing how to find it, the story is accessible in the UK and Wales online.
The Supreme Court has recently upheld the interim injunction until trial, Lord Mance giving the main judgment. This case has opened up the question of whether an injunction to keep an identity secret from the press a can be sustained in a global, internet-saturated society.
Lord Mance explained: “Under the established case-law, the court has to balance the rights of freedom of expression, on which NGN relies, against the rights of privacy of PGS, his partner, and their two children.”
The Supreme Court took these factors into account when making the decision:
- The extent to which the story has or will become available to the public;
- The public interest in the story; and
- Any relevant privacy code
The Court held that publication of the story in the UK and Wales would infringe on privacy rights of ‘PGS’, his partner and their two children. Furthermore, the court held that there is no public interest in publishing ‘kiss and tell stories’ simply because the persons involved are well known.
According to Lord Mance, it would be different had the story been about the impression of a public office, however as this person is a private citizen, albeit well-known celebrity, there is no ‘public interest’ to know his identity.
In today’s world, the story will be found online regardless of whether there is an injunction or not.
Lastly, the court held that relevant privacy code related to the children who would become involved in the scandal and of the public eye. NGN must show an ‘exceptional public interest to override the normally paramount interest of children’.
Whilst many of these points, particularly the interest of children involved, may be valid from the Court, one could argue that it is a pointless injunction considering the story is accessible out in the world anyway. The court’s reply to this is that enduring and intensive coverage of the story would contribute significantly to an invasion of privacy of ‘PGS’, his partner and most importantly the children.
So the question is this: is the court right in allowing the privacy of this celebrity for the interests of his partner and most importantly, his children or has the court infringed on the freedom of the press in the UK and Wales?
Due to the lack of genuine public interest in a publication of this story, the court expects that a permanent injunction will, in fact, be granted upon trial.
Once again, the battle between the right to free speech and freedom of the press versus the right to privacy ensues in the UK, spurring discussions on where the line between the two stands and where it should stand. Criticisms of the court by various MPs and members of the public have emerged, with Steve Doughty claiming the ruling to be “an ass of the law”.
Lord Toulson, the dissenting judge, stated that “the court must live in the world as it is and not as it would like it to be”. In today’s world, the story will be found online regardless of whether there is an injunction or not.
However, an injunction does assist in making it harder to find the story, thus protecting the privacy of the parties and any third parties (i.e. the children) who would become involved.
In the past, the courts have mainly provided injunctions upholding secret identities for individuals which may have otherwise been subject to a serious risk of injury or even death. One such example was the case of Venables and Thompson v NGN. The court held that the new identities of these men, the murderers of James Bulger, were to be kept a secret for the protection of their safety.
However, this latest ruling has been criticized by some lawyers as opening the doors for celebrities to suppress scandalous sex stories, particularly if they have children. According to Robin Shaw, a media lawyer, the judgment will lead to “a rapid increase in applications for privacy injunctions by rich celebrities”. If this is the case, will this severely impact and restrict the freedom of the press?
Or, will it, in fact, afford privacy to people whom, for years, have been subject to scrutiny from the press simply because they are famous or well-known?
The only interest by the press in publishing this story is because ‘PGS’ is famous. . . .
Some might argue that fame must be taken with a grain of salt and acceptance that you will be in the public eye. But, does this mean an individual no longer has the same level of right to privacy?
One thing I know for sure is that whether married and a mother or single and alone, if I took part in a threesome, the press would certainly not care one bit. The only interest by the press in publishing this story is because ‘PGS’ is famous, and therefore copies of the story would be bought and sold: a successful scoop of gossip-news would arise.
Considering all of this, it is no secret however that freedom of the press has often gone too far and seriously infringed on the privacy of individuals. The phone hacking scandal of 2011 is a prime example of this. So is the court merely trying to restrict a freedom which in fact has too much liberty?
Victoria Newton, editor of the Sun on Sunday, has stated that the story was “legitimate public interest journalism” and that the paper will “continue to fight to publish stories that we believe the public should know and the stories which people have a right to tell.”
The scandal itself is not so interesting as the jurisdiction the court has given itself. PM Cameron has only commented that the court system is one we should trust, though this latest restriction against the press has made this less possible by many members of the public.
So, will this decision bring a new era where celebrities can protect themselves (and their children) against the scrutiny of the press in scandalous matters? Or will this story be forgotten in a matter of months as just another privacy case from that one time? Only time will tell.