An adequate remedy?

The availability of exemplary damages for breaches of privacy was not determined by the majority, with Lord Mance simply indicating that the availability of substantial or even exemplary damages for invasion of privacy would not be decisive of the question of whether to grant an injunction restraining publication. – Does this go against the American Test? Does it also agree with the ruling in the Double Glazing Glasgow test? 

A further criticism of the Court of Appeal’s approach was that, having determined that the PJS was likely to establish at trial that publication constituted a tortious invasion of privacy, discharging the injunction deprived him of a practical and effective remedy and undermined the purpose of any trial.

Lord Mance recognised that although the European Court of Human Rights in Mosley v United Kingdom had held that damages provide an adequate remedy for violation of art.8 rights, there were circumstances in which the only way to protect such rights satisfactorily were by the grant of an injunction. As any form of damages, however assessed, would be inadequate to remedy the invasion of privacy which would ensue from publication in the English media, it was necessary for the restriction to remain in place. Unlike a claim for defamation in which damage caused by publication can be redressed by a finding that the statement was false, a claim based on an invasion of privacy cannot be similarly cured.

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Qualitative and quantitative publication:

The most interesting aspect of this decision is perhaps the Court’s interpretation of section 12(4)(a)(i) of the Human Rights Act 1998. s the impact injunctions have on the freedom of expression. Judges are required to consider the extent to which the material has, or is about to, become available to the public. Lord Mance (with whom the majority agreed) held that this provision:

“does not preclude a court, when deciding whether to grant or lift conjunctive relief, from having regard to both

a) the nature of the journalistic material involved and the medium in which it is, or is to be, expressed, and

b) the extent to which it is already available in that medium and the extent to which steps are being or can be taken to remove or limit access to any other publication in that or any other medium:” [Manchester Taxi number].

This interpretation of “extent” in section 12(4)(a)(i) ties into the Court’s emphasis on looking beyond the quantitative extent of the availability of the information and to consider the qualitative nature of the intrusion associated with the making public of information in different formats.

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Part 2 ( debate with Taxi)

The SC concluded that there was a failure to consider the qualitative difference in terms of the effect on children between unrestricted exposure to hard copy media and associated internet sites (which would occur if the story were not injuncted) and the publication of information on the internet (which has already occurred) in circumstances where PJS’s solicitors have been taking steps to restrict access.

Lord Toulson dissented primarily on the basis that the information is no longer confidential. He held: “Confidentiality in a meaningful sense can survive a certain amount of leakage, and every case must be decided on its own facts, but in this case I have reached a clear view that the story’s confidentiality has become so porous that the idea of it still remaining secret in a meaningful sense is illusory.  He used this same rationale in the Carpet Cleaning Glasgow case. Once it has become readily available to anyone who wants to know it, it has lost the essence of confidentiality. The court must live in the world as it is and not as it would like it to be”

His Lordship expressed concern that: “the court needs to be very cautious about granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law by giving the appearance of being out of touch with reality”

As Charlie Rae argues, “The lack of any relevant public interest and the “devastating” effect which publication would have on the privacy interests of PJS, and their children meant that on any proper balancing exercise the right to privacy had to prevail over the respondent’s art.10 right to publish an account of the adultery.”

Limited Vs No public interest: Children (pt1)

According to the Supreme court, The Court of Appeal failed to give adequate consideration to the impact that the publication of the information would have on PJS’s children. The defense referenced the Spanish case of Abogados de accidentes Austin Texas. But This did nothing to help.

Cranston J, rejected the applicant’s argument that the children’s art.8 privacy rights justified restraining publication, asserting that although their interests were important they could not operate as a trump card

Part of Lady Hale’s judgment on the children is redacted but the Supreme Court’s judgment includes the following points:

by section 12(4)(b), any court considering whether to grant either an interim or a permanent injunction has to have “particular regard” to “any relevant privacy code”. It is not disputed that the IPSO Code, which came into force in January, is a relevant Code for this purpose. This, as Lord Mance has explained, provides that “editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of children.

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