Freedom Of Speech v Privacy: A Balancing Act

With the rapid technological advances of the digital age, doubts have been cast over the viability and sustainability of privacy injunctions. However, the final judgment of the Supreme Court in the case of PJS v News Group Newspapers Ltd has seemingly put this to bed, for now, in what has been described by some commentators in the media as the judicial sanctioning of a 'cheater's charter'. The case demonstrates the need for a clear public interest in order for the right to freedom of expression to outweigh the right to privacy.

The case involved two well-known individuals in the entertainment business, referred to throughout as 'PJS' and 'YMA'. They are a married couple with two young children. The case revolves around an extra-marital sexual relationship carried on by PJS between 2009 and 2011 with 'AB' and 'CD'. AB disclosed the affair to an employee of News Group Newspapers Ltd ('NGN'), who informed PJS in 2016 that they intended to publish details of the relationship as told to them by AB. PJS then issued proceedings against NGN under article 8 of the European Convention on Human Rights ('ECHR'), claiming that publication would breach his rights to privacy and confidentiality. He also applied for an interim injunction to silence NGN pending the outcome of the trial.

Unsurprisingly, NGN argued that they had a right to freedom of expression under article 10 ECHR and that prohibiting publication of the story would infringe this right. Essentially, the exercise before the court was a balancing act; between the right of PJS to privacy on the one hand and the right of NGN to freedom of speech on the other. According to section 12(3) of the Human Rights Act 1998 ('HRA'), an interim injunction can only be granted where it is likely that, when it reaches trial, the court will order a restraint on publication of the material. Further, section 12(4) HRA provides that the court must give particular thought to the importance of freedom of expression and whether the information is already in the public domain, any public interest in its publication and any relevant privacy code.

Initially, the High Court refused the application for an interim injunction, but the Court of Appeal reversed this decision and granted the injunction, restraining publication of information which would identify PJS and details of the extra-marital relationship. However, on 6 April 2016 AB's account of the relationship was published in the United States and, subsequently...