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You’re a celebrity and had a threesome. Your partner wasn’t one of them. You want the affair to remain private. You go to a court in England where your family resides and get an interim injunction. It prevents the English press from publishing the tawdry details to protect your privacy and the privacy of your family. The affair becomes widely known in other countries including the US, Canada, and Scotland. The English public finds out about it through foreign web sites. They also find the story when using search engines, even when not looking for it. The English public is incited to access websites where details about the encounter can be found by the tabloids which thrive on selling papers filled with salacious details of sexual encounters. The tabloids create a frenzy working up the public claiming they are being censored when their foreign counterparts are not, then move to set aside the injunction.
After scuffles before the lower courts the case gets to England’s highest court. Upholding the rule of law and demonstrating it takes privacy rights seriously, last week the UK Supreme Court ordered the interim injunction continued until trial, stating also that search engines should geo-block links to foreign websites from which the story can be accessed to protect the applicant’s privacy rights.
The reasons of the Supreme Court in PJS v News Group Newspapers Ltd  UKSC 26 (19 May 2016) to maintain the injunction in place despite the tsunami of public pressure to rescind it were delivered in 4 sets of reasons, each of which (except for the dissent) was concurred in by the three other judges making up the 4:1 majority. Central to the decision were the following reasons concurred in by all of the justices writing to maintain the injunction.
- The ground on which the court acted was to preserve the privacy interests at stake in the case. (In this case, that of the appellant, his partner and their young children in England and Wales.)
- Unlike causes of action based on breach of confidence, claims to protect privacy can be maintained even when private information is already widely known. Even the repetition of known facts about an individual may amount to an unjustified interference with the private lives not only of that person but also of those who are involved with him.
- Claims based on respect for privacy and family life (under English law) are based on the two core components of the rights to privacy: unwanted access to private information and unwanted access to or intrusion into one’s personal space.
- The English/EU courts give very little weight to claims for “free expression” when the expression purely concerns private sexual encounters. Any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, the repetition of which is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made – especially if it occurs in a different medium.
- Injunctive relief to protect privacy can be granted to protect privacy interests even if the information is widely known (including significant internet and social media coverage) if the injunction can prevent extensive and qualitatively different privacy breaches. (That was the situation in the PJS case.)
- Exemplary or punitive damages and an account of profits may be recoverable at common law for misuse of private information in order to deter flagrant breaches of privacy and to provide adequate protection for the person concerned. (The court left this question open.)
Lord Mance (with whom Lord Neuberger, Lady Hale and Lord Reed agreed) concluded his judgement summarizing the rationale for maintaining the injunction as follows:
The circumstances of this case present the Supreme Court with a difficult choice. As in the Court of Appeal, so before the Supreme Court the case falls to be approached on the basis that the appellant is likely at trial to establish that the proposed disclosure and publication is likely to involve further tortious invasion of privacy rights of the appellant and his partner as well as of their children, who have of course no conceivable involvement in the conduct in question. The invasion would, on present evidence, be clear, serious and injurious. On the other hand, those interested in a prurient story can, if they try, probably read about the identities of those involved and in some cases about the detail of the conduct, according to where they may find it on the internet. The Court will be criticised for giving undue protection to a tawdry story by continuing the injunction to trial. There is undoubtedly also some risk of further internet, social media or other activity aimed at making the Court’s injunction seem vain, whether or not encouraged in any way by any persons prevented from publishing themselves. On the other hand, the legal position, which the Court is obliged to respect, is clear. There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it would involve significant additional intrusion into the privacy of the appellant, his partner and their children.
At the end of the day, the only consideration militating in favour of discharging the injunction is the incongruity of the parallel – and in probability significantly uncontrollable – world of the internet and social media, which may make further inroads into the protection intended by the injunction. Against that, however, the media storm which discharge of the injunction would unleash would add a different and in some respects more enduring dimension to the existing invasions of privacy being perpetrated on the internet. At the risk of appearing irredentist, the Supreme Court has come to the conclusion that, on a trial in the light of the present evidence, a permanent injunction would be likely to be granted in the interests of the appellant, his partner and especially their children. The appeal should therefore be allowed, and the Court will order the continuation of the interim injunction to trial or further order accordingly.
Enjoining the tabloids from publishing the salacious details of sexual encounters would not have prevented members of the English public from accessing stories about the affair published on foreign sites. This was amply demonstrated by the privacy breaches suffered by Max Mosley who waged precedent setting legal battles against media sites and Google in several jurisdictions to get stories about his private life removed from web sites and de-indexed by Google. See, Internet justice: Mosley v Google.
The Court recognized that to protect the applicant’s privacy interests it was necessary not only to enjoin the tabloids, but also for search engines to geo-block links to the story to prevent access in England, something Google was reportedly doing. Lord Neuberger (the President of the Court with whom Lady Hale, Lord Mance and Lord Reed agreed) dealt with this issue stating the following:
It also seems to me that if there was no injunction in this case, there would be greater intrusion on the lives of PJS and YMA through the internet. There may well be room for different views as to whether the lifting of the injunction would lead to an increase or a decrease in tweets and other electronic communications relating to the story. However, if the identity of PJS and the story could be communicated within England and Wales, then it would be likely that anyone in this jurisdiction who was searching for PJS (or indeed YMA) through a search engine, for reasons wholly unconnected with the story, would find prominent links to that story. But if search engines serving England and Wales are geo-blocked from mentioning PJS, or indeed YMA, in connection with the story, as they should be so long as an injunction is in place, this would not happen. It might be said that PJS and YMA could ask the search engine operators to remove any links to the story pursuant to the decision of the Court of Justice in Google Spain SL v Agencia Española de Protección de Datos (Case C-131/12)  QB 1022, but it seems unlikely that the reasoning in that case could apply to a story which has only recently become public and is being currently covered in the newspapers…
It is one thing for what should be private information to be unlawfully disseminated; it is quite another for that information to be recorded in eye-catching headlines and sensational terms in a national newspaper, or to be freely available on search engines in this jurisdiction to anyone searching for PJS or YMA, or indeed AB, by name in a different connection. If, as seems to me likely on the present state of the evidence and the current state of the law, PJS will succeed in obtaining such an injunction at trial, then it follows that he ought to be granted an injunction to restrain publication of the story in the meantime. (emphasis added)
The PJS case has been the subject of considerable commentary. A good roundup can be found here, “Free speech drowning”? – Supreme Court decision to reinstate PJS injunction, a news Round Up”.
Canadian common law courts are still struggling to develop the contours of the emerging tort of intrusion upon seclusion first recognized in Ontario in the Jones v. Tsige, 2012 ONCA 32 case. Some provinces have recognized it, British Columbia (which has a statutory tort of invasion of privacy) does not. See, Ari v. Insurance Corporation of British Columbia, 2015 BCCA 468. A Federal Court decision rendered earlier this year has suggested that the Canadian common law courts may also recognize another US privacy tort that provides a remedy against the wrongful disclosure of private information that would be highly offensive to a reasonable person and not of legitimate concern to the public. See, John Doe v. Canada, 2015 FC 916.
However, Canadian common law courts are still far behind the English courts which have developed a much more flexible tort of misuse of private information, as well as remedies for breach that include damages to compensate for the loss or diminution of a right to control private information, and now following the PJS case, perhaps also exemplary or punitive damages and an accounting of profits. See, Representative Claimants v MGN Ltd  EWCA Civ 1291 (17 December 2015). The damages recoverable in England for the tort are more extensive than those recognized as being recoverable in Canada so far.
Surprisingly, Canadian courts have not had to canvass recently whether the English common law tort of misuse of private information should be adopted in Canada. The courts have also not had to tackle whether the torts that have been recognized so far would enable a claimant to obtain interim or final injunctive relief to protect disclosure of private information that is widely available in other countries.
Barry Sookman is an IP Osgoode Advisory Board Member and a senior partner with McCarthy Tétrault in the Toronto office.