The Sun last month splashed the headline that free speech had drowned in a paddling pool of olive oil.
The Supreme Court in PJS v NGN had just ruled 4:1 to continue an interim injunction until trial, overturning a 3:0 Court of Appeal decision to set aside the injunction. This prevented The Sun on Sunday from identifying a celebrity (PJS) involved in a high-energy, extra-marital threesome, even though the internet was already awash with PJS’ identity and where the information was available in print in the US and elsewhere.
Sex scandals are as old as the hills – from presidents to sports stars. But the PJS judgment highlights three important points.
First, the Supreme Court majority held that a permanent injunction remedy would likely be granted at trial; and therefore if the interim gagging order were to be removed beforehand, it would render impotent any subsequent permanent injunction.
Secondly, 25 per cent of the UK population already know PJS’ identity. This may diminish the confidential nature of the information, but not its private nature. Private information often will survive even when the information enters the public domain.
Similarly, the recent ‘naming and shaming’ in the US National Enquirer magazine of UK footballers and a football manager who obtained UK sex scandal injunctions is unlikely to justify those injunctions being lifted.
Staying in the US, the sports star Hulk Hogan recently sued the Gawker Media network for publishing footage of Hogan having sex with his best friend’s wife. In the UK, a balance is required between Article 8 of the ECHR (private and family life) and Article 10 (freedom of expression). In the US, a similar balance is required between the First Amendment of the US Constitution (free speech) and the 14th (the right to privacy).
However, following a jury trial, Hogan was awarded an astonishing $140m in damages. The UK media should perhaps count their blessings. By way of contrast, in Mosley v NGN (a case involving footage of the then FIA president enjoying an S&M orgy with five women), Max Mosely was only awarded £60,000. That was back in 2008. But even today, the limit for privacy damages in the UK is comparatively low – around £260,000 following the 2015 Gulati v MGN phone-hacking case.
Thirdly, the PJS judgment held that if the interim injunction was overturned, it could lead to a sensationalised media storm prior to trial, especially in the printed media, which could cause further distress and intrusion to PJS, his spouse and their children (who have their own, independent privacy rights).
Printed newspapers carry greater influence, credibility and reach than online. Despite falling sales, people still like physical product– with two thirds of UK adults reading printed newspapers. To coin a phrase from media philosopher Marshall McLuhan, the medium is still the message.
Whatever your views on the PJS judgment, The Sun on Sunday editor Victoria Newton performed a masterstroke of media strategy with the PJS story. She played by the rules by informing PJS prior to publication about the intended story (giving him opportunity to seek an injunction). She then maximised the story itself and the accompanying legal battle, with front page splashes, features and opinion pieces. As a result, Newton ensured The Sun of Sunday’s place at the top of Sunday paper circulation, and ensured that her story was front and centre of everyone else’s news agenda – all without naming PJS.
President John F. Kennedy (himself the subject of a sex scandal with Marilyn Monroe) once said: “There is a terrific disadvantage in not having the abrasive quality of the press applied to you daily. Even though we never like it, and even though we wish they didn’t write it, and even though we disapprove, there isn’t any doubt that we could not do the job at all in a free society without a very, very active press.”
There will continue to be sex scandals. There will continue to be privacy rights. Editors will continue to make difficult judgment calls about what is in the public interest and what the public finds interesting. Judges will continue to decide difficult cases and uphold the rule of law.
The internet may be awash with PJS’ identity, but free speech has far from drowned.
Kiaron Whitehead, intellectual property lawyer
