Celebrity privacy injunctions may not be dead but law looks a dodo all the same
So the privacy injunction isn't dead. But does the law look the ass the Daily Mail branded it last month?
My answer has to be yes after the supreme court sensationally overruled the appeal court in the case of the celebrity, known only as 'PJS', involved in an extra-marital 'threesome'.
So now those of you who – in England and Wales only, remember – still don't know the name must remain in the dark.
That adds up to no more than half the population of the two countries at most, by my reckoning.
The other day I conducted a little experiment by asking 20 non-media friends if they knew who PJS was. Without any prompting 12 did and, supreme court please note before you order my arrest, I didn't enlighten the remaining eight, to their annoyance.
Those who did know were fully aware via social media, tapping into foreign media websites or simply joining the chat around the office water cooler or down at the Dog and Duck.
The supreme court's surprise overruling of the appeal court's provisional decision last month to lift the gag came in a 4-1 majority decision. My verdict is the one got it right and the four got it badly wrong.
The result also came as a shock to most leading media lawyers I know and, I suspect, to PJSs' own highly expensive legal team, led by Desmond Browne QC who, incidentally, spends at least as much time defending newspapers as he does seeking to gag them.
The result also doubtless brought heavy sighs of relief from the 20 other celebrities and VIPs currently holding privacy injunctions against mainstream UK newspapers and who were mortified at the anticipated lifting of the gag around PJS and their spouse by the supreme court.
Delivering the supreme court's majority decision, Lord Mance ruled that the appeal court got "very wrong" the "balance between freedom of expression and the right to privacy". He went on: "Second there is no public interest (however much it may be of interst to some members of the public) in publishing kiss and tell stories or criticisms of private sexual conduct simply because the person is well-known and there is no right to invade their privacy by publishing them."
It was, for my money, a sweeping generalisation that lawyers for the Sun on Sunday who had fought long and hard for the right to publish the 'PJS' story will be studying closely and exploring the possibility of challenging again.
In its fight to publish, the Sun had been loudly backed by most of its rivals, most vociferously the Mail and the Telegraph. OK, there were commercial motives as much as press freedom and freedom of expression involved, but that doesn't devalue the legitimate arguments in favour of publishing.
The Sun on Sunday had argued that the star and well-known spouse had promoted an image of idyllic marriage and parenthood which gave the public a misleading impression of fidelity and thus amounted to hypocrisy.
But where I think the appeal court got it right and the supreme court got it wrong lies as much in the brutal reality of modern communications as moral judgements about celebrities' sexual shenanigans.
The stark reality is that the injunction at the centre of this case applies only to England and Wales and not even to Scotland where PJS has been identified. And certainly not to the US and many other nations where identities have been published in mainstream publications, broadcast on the airwaves and discussed across the largely frontier-free zone of social media cyberspace.
In the earlier but now overturned appeal court written judgement, a trio of senior judges accepted that maintaining a gagging order in England and Wales only after it had been published beyond their jurisdiction across both social and mainstream media was a 'hopeless task'.
They wrote: "This court has little control over what foreign newspapers and magazines may publish. Those who are interested already have no difficulty finding out who the secret celebrities are. Websites discussing the story will continue to pop up. As one is taken down, another will appear."
In another marked contrast to the supreme court, appeal court judge Lord Justice Jackson suggested the celebrity couple's children "cannot be a trump card" and added: "In my view, whether or not the court grants an injunction, it is inevitable that the children will in due course learn about these matters."
I'd call the appeal court the modern communications world realists this time and the supreme court the reverse, preserving the unpreservable.
Several times during the lengthy legal scrap, broadcasters have asked whether PJS was like King Canute trying to turn back the tide. To which I've replied: "No, Canute was only trying to hold back the sea, this person's trying to hold back the tsunami of global cyberspace."
Well, for the moment I'm wrong – in England and Wales, anyway – but not for long I suspect as editors in the US and elsewhere threaten to expose more and more VIP UK beneficiaries of privacy injunctions.
It's clear that the Murdoch-owned Sun on Sunday won't back down (rightly so, in my view) and will take the case to a full trial later this year.
For me the most telling comment out of the supreme court came from the lone dissenting judge Lord Toulson, a privacy expert, who echoed much of the appeal court's pragmatism, pointedly remarking: "The court must live in the world as it is and not in the world it might like it to be." He also pointed out the practical problems of hiding the story from the couple's children and suggested that identifying who PJS really is now wouldn't impact on their right to sue the Sun on Sunday for damages for invading their privacy in a post-publication civil case.
It was a sharp contrast to Lord Justice Mance's ruling that – despite the acknowledged widespread publication outside England and Wales in the mainstream media as well as on social media – "if the injunction were to be lifted there would be intensive coverage in the Sun on Sunday, and very likely other papers, as well as unrestricted internet and social media coverage".
Rather lost in all of this, however, was the fact that there were other people involved in that extra-marital boudoir encounter and they want to kiss and tell/sell their story to the Sun on Sunday. What about their 'right' of free speech? Are privacy injunctions all too often the preserve of the rich, famous and powerful at the expense of lesser mortals? (The PJS case is already estimated to have cost well over £1m in legal bills). Often, too, these are famous folk only too ready to invade their own privacy when it suits their PR/promotional interests. Still it's all a nice little earner for the legal eagles, if no one else!
A source close to 'PJS' told me later that they were "delighted by the supreme court's wise decision to overturn a flawed appeal court decision". They went on: "Ideally he'd like the Sun on Sunday to abandon any idea of going to full trial, but he fully expects they'll fight on. This is a matter of strong principle for him, not just for himself but for others too facing unreasonable media intrusion. So he'll continue the fight, regardless of the financial costs involved."
Despite today's supreme court judgement, I'd still diagnose the celebrity privacy injunction to be in the critical ward on life support machinery with men and women in wigs rather than wearing white coats and stethoscopes supervising as the last rites loom.
And even if you don't care or know who PJS is, remember that media-gagging injunctions can also be the weapon of last resort for dodgy businessmen, corrupt corporates and politicos with secrets to hide from you.
Paul Connew is a media commentator, broadcaster, former editor of the Sunday Mirror, ex-deputy editor of the Daily Mirror and co-author of 'After Leveson'