The Farce is With You: When Newspapers Confuse Privacy with Confidentiality – Paul Wragg

16 04 2016

AnonymousThe British press has made much of the injunction granted by the Court of Appeal in PJS v News Group Newspapers.  This overturned the first instance decision that a story (to be published by The Sun on Sunday) about a well-known entertainer’s spouse engaging in extra-marital sexual activity was a matter of public interest (outweighing the couple’s claim to privacy). 

This knowledge, the High Court found, would correct a public misconception about the health of their marriage.  The Court of Appeal, though, disagreed.  It found that the first instance judge was mistaken: since the claimants freely admitted to being in an open relationship, infidelity did not undermine their public claims to being in a committed relationship.  It could not be said, therefore, that their happy public persona constituted hypocrisy in light of this new information.  Also, the deleterious effect of lurid press scrutiny would undoubtedly affect their children to a greater extent than the court had accounted for.  On balance, therefore, the privacy claim must win and the story could not be published.

The story, though, found its way to a US publication, which published the story to the US market (where, of course, the injunction had no legal status).  This publication permitted both US and non-US internet users to discover the claimants’ identity.  This, the Daily Mail, concluded, on 7 April, was farcical since it deprived UK audiences from knowing the truth.

On April 8, the Daily Mail’s protestations continued as it published, on a double-page spread, the full US article, with the identities of the parties redacted.  It also provided quotes from lawyers which not only decried the (alleged) ridiculousness of maintaining the injunction but also added a sinister undertone to the decision to grant it:

‘…so the rich and famous with child are now going to be able to put forward these saccharine images and the preened images by their spin doctors…and the public won’t be able to have them gainsaid by the free Press in the United Kingdom… Now what we are seeing is children thrown under the legal bus in order to prevent stories coming out’

On Monday 11 April, the press outcry continued: it was reported that an unnamed Scottish newspaper had published the story over the weekend with the identities revealed.  The Guardian, erroneously referring to the injunction granted in PJS as a ‘superinjunction’, noted that the Scottish newspaper had said:

‘…just to be clear, we are not naming them because of the story they are trying to suppress.  We couldn’t care less.  We do, however, care about free speech, a free press and very wealthy people spending huge sums of money stopping stories they do not much like the sound of.  If we did not name them, it would only encourage people — possibly celebrities, more probably tycoons and politicians — with something to hide to attempt to hide it behind a court order.’

The Daily Mail added similar sentiments by quoting supportive comments from two senior lawyers: the first saying ‘In the absence of the celebrity couple posting their lawyers at airports and train stations across the land, this is a farce.  The injunction obviously cannot stand’ and the second: ‘What has happened in Scotland calls into question the effectiveness of privacy laws.  They are there to stop improper intrusion but this must be balanced with the right of people to know.

The farce, though, is not with the law but with the press.  As media lawyers know, the legal analysis in these accounts is plainly wrong.  The misuse of private information tort does not allow ‘the corrupt and the crooked to sleep easily in their beds’ (to borrow a phrase from Paul Dacre).  The injunction would not have been granted had there been a feasible public interest claim at stake.  Indeed, as seen in other celebrity gossip claims, the court is exceedingly generous in its treatment of the term public interest and so has dismissed privacy claims concerning intrusive reporting about (the sex lives of) John Terry, Rio Ferdinand, Steve McClaren, Karina Trimingham and Marcos Rojo to name a few.

It is simply nonsense to claim, as the Scottish newspaper did, that the decision in PJS encourages tycoons to hide stories that they do not much like.  It is equally disingenuous to claim that the people’s ‘right to know’ is now at stake.  The public interest dimension in the story does not increase simply because the identities are now knowable.  Moreover, it is absurd to say, as the Daily Mail does, that the public is in the dark when the whole thrust of the press’s ire is that the public does know (or else can easily discover) who the claimants are (since this information is readily available on the internet).  Moreover, since the Daily Mail, et al, have informed the public (inexorably) of their view about the affair and attempts to ‘conceal’ it (through laws protecting their legitimate interests to do so!), it cannot be said the public has been deprived from knowing what the press, as unelected moral arbiter, thinks about these events.  The appetite for public interest information (the ‘right to know’) has been sated; the press’s role as conduit exhausted.

The claim that the injunction should now be discharged because the claimants’ identity is knowable raises an important matter of principle.  Mr Justice Eady clearly perceived this when Ryan Giggs’s identity as the claimant CTB v News Group Newspapers became widely known: 

‘Different policy considerations come into play when the court is invited to abandon the protection it has given a litigant on the basis of widespread attempts to render [the injunction] ineffective’.

Continuing the injunction prevented further information being printed (which might not have been yet revealed) but also, more importantly, protected the claimant from unwanted press scrutiny:

“It is important always to remember that the modern law of privacy is not concerned solely with information or ‘secrets’: it is also concerned importantly with intrusion…  It is fairly obvious that wall-to-wall excoriation in national newspapers…is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up’

As these insights reveal, the continuation of the injunction serves a symbolic and substantial purpose.

The claim that the injunction should be discharged confuses privacy with confidentiality.  Whereas breach of confidence is about secrecy, the misuse of private information tort is about human dignity.  This point was clearly recognised in Campbell v MGN Ltd: as Lord Hoffmann said, it is about ‘the right to control dissemination of information about one’s private life and the right to the esteem and respect of other people’.  Sensitive information is not a commodity (like trade secrets).

The harm of disclosure by the tortfeasor does not crystallise once the information is publicly known such that further disclosures cause little or diminishing levels of damage.  Instead, the harms increase as public scrutiny intensifies.  Importantly, those harms arise in different forms.  Naturally, there is the harm of others knowing the private information.  But there is also the harm, arguably greater, in others gossiping about that information.  And, surely greatest, there is the harm caused by the unwanted (and unwarranted) press attention and attendant public scrutiny.  The spotlight of press/public vilification causes real distress.  Whereas the first two harms have happened to PJS, the final one has not (presumably) – though not for want of trying on the press’s part.

The Sun on Sunday has applied to set aside the Court of Appeal injunction in PJS in light of recent events.  The court ought to dismiss the appeal, for the reasons that Eady J made plain in CTB.  But hopefully the court will use this application as opportunity to make two points clear.

First, no harm to UK audience interests has occurred.  The British press has taken full advantage of the malignancy with which PJS’s identity was revealed abroad.  No one is in the dark.  No harm has been caused to the public or the press.  But further harm would be done to PJS and his family if the press is permitted to print his name since that would cause the full media circus to descend upon him.

Secondly, and more importantly, the press ought to be admonished by the courts for its petulant behaviour in this saga.  There is no freedom of speech issue at stake here.  But the constant reporting by tabloids and broadsheets has breached the spirit, if not the letter, of the injunction obtained in PJS.  By subjecting the claimants to daily bouts of indignation and outrage it has surely intensified the harms that the injunction was meant to prevent.  This episode serves to show the press as mean-spirited, vindictive and ruthless: it conveys the very clear message that those who obtain injunctions will be hounded until either they or the law submits.  A finding of contempt against the principal actors would not be unwarranted and is, surely, necessary.

Dr Paul Wragg is an Associate Professor of Law, University of Leeds, Associate Academic Fellow, Inner Temple, Editor-in-Chief of Communications Law (Bloomsbury Press)

This post will be published in the June edition of Communications Law. Article submissions (of 7,000 to 10,000 words) are welcomed for the September edition.  Copy deadline, 1 July.  Contact Paul Wragg, p.m.wragg@leeds.ac.uk, for further details.


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