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.”