Celebrity threesome story flags injunction weaknesses

This article has been reproduced with the kind permission of Spear's.

The courts may no longer be the best battlefield for the fight to keep a celebrity's private life private according to Jennifer Agate. Few can have missed the ongoing drama of the anonymous celebrity caught up in an international media storm as he battles to keep his private life private.

The saga began on 18 January, when a 'well-known' married man in the entertainment business, anonymised in court documents as PJS, applied for an emergency injunction against a tabloid newspaper in the English courts. The paper hoped to publish an interview with AB, who claimed to have had a sexual relationship with the celebrity, culminating in a threesome with AB's partner, referred to as 'CD'.

The first judge to hear the case decided that as PJS and his partner YMA had portrayed an image to the world of a committed relationship, there was a public interest in correcting this false image. Although the claimant and his partner had young children, the privacy rights of children did not act as a trump card against publication. The application was refused, although a temporary injunction was allowed to give PJS the opportunity to appeal.

On 22 January the Court of Appeal overturned the decision, finding that PJS did in fact have a reasonable expectation of privacy that exceeded the paper's right to freedom of expression. While the claimant and his partner had portrayed an image of a couple in a long term, loving and committed relationship, they had never sought to portray a picture of total marital fidelity and privately engaged in an open relationship. Accordingly, they had not created a false image and there was no public interest. Publication would be devastating for PJS and the couple's children would inevitably become the focus of increased press attention and potential harassment.

So PJS was granted his injunction. While in some other cases this might have been the end of it (a number of injunctions from the so called 'Superinjunction Spring' of 2011 still stand), a media back-lash erupted against PJS, with papers arguing that freedom of expression was being 'gagged' and the public denied their right to know. When a US title published the story in lurid detail, the papers' fury only heightened, with commentators querying whether there remained any value in an English injunction. The Scottish and Irish papers followed suit and the Speaker of the House of Commons was forced to issue a warning to MPs not to use parliamentary privilege to thwart the injunction (an action which would have allowed the English press to report the name with impunity).

So why has it all gone wrong for PJS and should future applicants fear that they will suffer the same fate?

Privacy cases are inherently fact specific and will always be dealt with, by the courts at least, on their individual merits. A high profile figure with a private life they wish to keep discreet (for good reasons or otherwise) would be well advised to ensure that they never allow a misleading impression to be given to the public and press, either through their own statements or those of well-meaning advisors who might not have the full facts. Those with children they wish to protect should also ensure that they are kept away from the public stage.

One of the major factors in this case is that PJS and YMA are of sufficient international interest to merit not only the English, but the US press taking an interest in publishing the story. Individuals with a lower international profile would be less likely to face the same issue.

All of that said, any individual seeking to stop publication of any story must always be alive to the doubly damaging reputational risk of failing to do so and then being exposed as having tried. Certainly, where there is any element of public interest they would be brave (or possibly foolish) to take any steps that could be portrayed as a cover up. Where reputation is concerned, any legal advice must include a practical assessment of the realities of pursuing and enforcing court remedies.

Whatever the result in the courts, PJS must now be wondering whether an injunction was the best reputational tool. The dam is presently holding in England and Wales, but the waters have simply found other routes to escape.

If you require further information on anything covered in this briefing please contact Jennifer Agate or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Disputes page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2016