01 Jul CELEBRITY THREESOME INJUNCTION ROW CONTINUES
The Supreme Court has upheld an injunction granted to a married celebrity to prevent a Sunday tabloid reporting that he had a threesome with another couple, even though his identity has been reported in the US, Scotland and on social media.
The first judge to hear the case (in January) refused to grant the injunction, saying the story would correct the misleading impression of the married couple being in a committed relationship. However, on appeal, the couple argued that the image they have presented was not one of monogamy but one of commitment, which does not necessarily entail monogamy – they stated that they are in an open relationship and happy with this. The Court of Appeal agreed which was also concerned about the impact reporting would have on the couple’s children, who were likely to experience harassment in the playground or online.
After this ruling, the American press named the man, as have individuals on social media (illegally), but the English press remained unable to do so for fear of being in contempt (a criminal offence). The man has also been named in Scotland, where the injunction does not apply. The High Court’s jurisdiction is England and Wales only – Scotland is a separate jurisdiction where both law and procedure differ. An order can be effective in Scotland if it is registered as a foreign judgment, but this applies only to final orders, made following a trial, not ‘interim orders’ such as this which are sought to protect a party’s identity until the matter is resolved at trial. It appears that the celebrity in this case did not seek a separate injunction in Scotland to protect his identity.
In the light of all the reporting of his name, the Court of Appeal looked at the matter again in April, and decided that the injunction should be lifted, as the court judged that the man was now not likely to obtain a permanent injunction at any future trial to prevent reporting. Circumstances had changed such that knowledge of the identity of the man was now so widespread that confidentiality had been lost and much of the harm the injunction sought to prevent had already occurred. The Court of Appeal judges considered it inappropriate for the court to ban people from saying that which is common knowledge, but continued the injunction temporarily to allow the man to appeal to the Supreme Court.
On 19 May, the Supreme Court, by a majority of 4-1, disagreed with the Court of Appeal, allowed the appeal and continued the injunction until trial.
The majority of the judges were satisfied that publication should not be allowed pending a full trial of the matter. The Court of Appeal had got it wrong in saying that freedom of expression rights weighed more heavily than privacy rights – both have equal weight. The Supreme Court found that there was no public interest in ‘kiss and tell’ stories, however famous the individuals involved. Publication would infringe the privacy rights of the man, his partner and their children.
The Supreme Court took into account the provisions of the IPSO Code (IPSO being the press regulation body to which the Sun on Sunday is signed up), which requires a newspaper to show an exceptional public interest in order to override the normally paramount interests of children. Although there has been publicity, the question is whether the injunction still serves a useful purpose. If the injunction was lifted the Court said there would be extensive coverage in the Sun on Sunday, likely in other newspapers and unrestricted coverage on the internet, all of which would amount to additional infringement of, and intrusion into, the privacy rights of the man, his partner and their children. The Court held that damages after publication would be no real redress, and an injunction was the only remedy of any value to prevent further intrusion.
The furore is reminiscent of the row over the injunction obtained by Ryan Giggs to prevent reporting of details of a sexual relationship between him and Imogen Thomas (a former Big Brother contestant). He was widely named on social media, and ultimately by an MP in Parliament, where the disclosure was protected by Parliamentary privilege. The courts continued to refuse to discharge the interim injunction despite all the publicity, saying the injunction continued to protect the family from intrusion. However, the matter was never finally decided as the case was struck out on procedural grounds, and accordingly Giggs can be named in connection with the story.
With this case, the Supreme Court has decided that, even in the internet era where the England & Wales court cannot stop publication overseas, an injunction to prevent reporting of private matters is still a valuable remedy which can and should be granted to prevent intrusion into people’s private lives.
Of particular concern for the tabloid press will be the Supreme Court’s finding that there is no public interest in kiss and tell stories. Unless the person has some public role on which the infidelity may impact, or a story corrects a misleading impression, it seems likely that interim injunctions will be available to those facing potential stories about their sex/romantic lives; and the argument that there is a public interest in exposing, commenting on and/or criticising their actions has been rejected. Five years after the demise of the News of the World, is this the final nail in the coffin for the ‘kiss and tell’?