Yesterday the Supreme Court by a majority of 4-1 ordered that the injunction preventing the publication in England and Wales of the identity and details of the celebrities’ sex life shall continue until trial or further court order.
The injuncted information has been published in America, Scotland and, as their Lordships’ recognised, is readily available online to those keen to find out. It was largely for this reason that the Court of Appeal on April 18 ordered that the injunction be lifted implementing a stay to allow the celebrities to bring an appeal; Jackson LJ being of the opinion that the information was in the public domain, confidentiality was probably lost and the harm the injunction was intended to prevent had likely already been suffered.
Lord Mance, delivering the majority judgment, stated that the loss of confidentiality was not fatal to the injunction. The injunction could and, in the court’s view, would continue in order to protect the celebrities’, and their family’s, right to privacy. There is, according to the majority, a distinction to be drawn between information which could be discovered by those individuals intent on finding it, and the information being widely published by the national media or appearing in internet search results about other, unrelated aspects of the celebrity’s life. The ‘media storm’ that would accompany publication would cause further invasions of the right to privacy of those involved. For the majority, significant harm would still be suffered through this further invasion of privacy and the court use its powers to defend those rights.
As Lord Neuberger observed in his supporting judgment, paragraph 69, a story appearing in a newspaper has ‘greater credibility, influence and reach’ than the same story appearing online. Equally, the potential for harm is magnified. For this reason, the injunction is to be maintained.
Lord Toulson, dissenting, believes that as the facts were already in the public domain, the court should be cautious about injuncting the publication of those fact. The risk, as his Lordship sees it, is that public respect for the law can be eroded by the appearance of it being out of touch with reality. He acknowledged that a repeated publication of an image can cause further invasions of privacy but contended that the same was not true for facts. Once the facts of a case are known the scenario changes. His Lordship, at paragraph 86, repeated Jackson LJ’s remark that ‘it is in my view inappropriate … to ban people from saying that which is common knowledge’, adding that this observation is ’good sense and good law.’
There is clearly a tension between what causes the infringement to an individual’s right to privacy: is it the medium and manner in which the information is conveyed, or the dissemination and knowledge of the private information? For now, the law is more focussed with the former, but as their Lordships were at pains to point out, the law in this area will be kept under review to ensure it is in step with the requirements of the modern day. However, the decision is at present in step with the way modern society consumes information. If information is pushed it has a far greater coverage which will lead to a far greater loss of privacy. If information has to be sought, many will not and there is no sensational effect that runs on and on, rather a single view and read. This decision breathes new life into the debate that once posted on the internet there is no right to be forgotten and no right to privacy. Sensibly, an in step Supreme Court accepted, internet or not, the right to privacy is real, relevant and to be protected. We welcome the ruling.