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Star trying to keep name out of 'kiss-and-tell' story wins Supreme Court fight

Published 19/05/2016

A celebrity trying to keep his name out of a tabloid "kiss-and-tell" story has won a Supreme Court fight with Sunday newspaper editors.

Supreme Court justices say The Sun on Sunday should be barred from revealing the man's identity.

The man - referred to in court hearings only as PJS - had asked for a Supreme Court ruling after losing fights in lower courts.

Three appeal court judges had ruled in April that an injunction barring The Sun on Sunday from naming him should be lifted.

But a panel of five Supreme Court justices has overturned that decision by a four to one majority - and ruled that the injunction should stay.

One justice said there was "no public interest" in publishing "kiss-and-tell" stories "simply because" people were well known.

The ruling has generated a mixed reaction and legal experts say it will have implications.

Journalists at The Sun on Sunday want to publish an account of the man's activities.

The man argues that he has a right to privacy and has taken legal action.

He had sued News Group Newspapers, which publishes The Sun on Sunday, claiming that publication of information about alleged extramarital activity would be a misuse of private information and a breach of confidence.

Any trial of those claims is likely to be overseen by a High Court judge - who could decide to lift the anonymity injunction after analysing all evidence from both sides.

Judges have said the man is in the entertainment business. They say his spouse - named as YMA - is also well-known in the entertainment business and the couple have ''young'' children.

Sun on Sunday editors had won the first round of the fight over identity in January, when a High Court judge refused to impose an injunction barring publication.

The man had appealed - and two appeal court judges ruled in his favour.

Lawyers for News Group Newspapers then asked three appeal judges to lift the ban after the man's identity emerged online.

They told Lord Justice Jackson, Lady Justice King and Lord Justice Simon at a Court of Appeal hearing in London in April that the ban should go because the man had been named in articles abroad - outside the legal jurisdiction of England and Wales. They said "the story" had been published in an American magazine and the man's name could be found on the internet.

Lord Justice Jackson, Lady Justice King and Lord Justice Simon ruled in the newspaper's favour.

The Supreme Court has come to a different conclusion.

Five justices - Lord Neuberger, President of the Supreme Court, Lady Hale, Lord Mance, Lord Reed and Lord Toulson - had analysed the case.

Lord Toulson had been in the minority and said he would have discharged the injunction.

The thinking of the majority of justices was outlined by Lord Mance in a written ruling.

"Publication of the story would infringe privacy rights of PJS, his partner and their children," said Lord Mance.

"There is no public interest (however much it may be of interest to some members of the public) in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them.

"It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved ... that does not apply here."

He went on: "As to public availability, it is true that the story has been accessible on the internet and social media, but, if the injunction were to be lifted, there would be intensive coverage of the story by The Sun on Sunday (and, there is little doubt, by other newspapers), as well as unrestricted internet and social media coverage, all of which would constitute additional and potentially more enduring invasions of the privacy of PJS, his partner and their children ...

"If publication were permitted now it would be likely to deprive a trial of any real purpose, since all privacy would by then have been destroyed. Damages after the event, whatever their measure, would be unlikely to give any real consolation or redress to any of those involved."

Lord Mance said justices were aware of the "lesson which King Canute gave his courtiers".

"Unlike Canute, the courts can take steps to enforce its injunction pending trial," he said.

"It is unlikely that the heavens will fall at our decision. It will simply give the appellant, his partner and their young children a measure of temporary protection against further and repeated invasions of privacy pending a full trial."

Bob Satchwell, executive director of the Society of Editors, said the Supreme Court decision was "disappointing".

"This is not just about the private lives of celebrities, it is about principles and practicalities. It is wrong that people in England and Wales cannot read in the media of their choice whatever everyone else in the world knows already," he said.

"In practical terms, as Lord Justice Jackson said in the appeal court, the court should not make orders which are ineffective."

Mr Satchwell added: "Apart from bringing the courts and the law into disrepute, injunctions are an expensive waste of rich people's money and of the courts' time. The courts are overwhelmed with other important work and today's judgment may well encourage greater use of injunctions.

"Only lawyers benefit and one of these days really important issues may well remain hidden because of spurious claims for privacy and the protection of children."

He went on: "Everyone has a right to privacy but if we are about to become involved in activity that would be embarrassing if revealed to the public, we should perhaps think twice before indulging in it in the first place."

A politician who five years ago used parliamentary privilege to expose football star Ryan Giggs as the celebrity protected by a privacy injunction said he was surprised.

"Obviously the Government is in a position to pass legislation to free up speech in the UK. That is what needs to happen," said f ormer Liberal Democrat MP John Hemming.

"Such a constraint on freedom of speech is something that the House of Lords Judicial Committee of the last millennium would not have supported. I am surprised that the Supreme Court does."

He added: "Clearly the Supreme Court have not learnt from the lesson of King Canute - that there are realities that it is not practical to resist."

But lawyer Dominic Crossley, who specialises in media and privacy issues and is a partner at law firm Payne Hicks Beach, took a different view.

"This is an important moment for the law of privacy in the UK," he said.

"Privacy is a right that we all value, every day, but it is meaningless unless we are able to enforce that right in court.

"The Supreme Court decided that there was no public interest in the disclosure of this sexual encounter and that the injunction still serves a useful purpose.

"Importantly, it recognises the essential difference in intrusiveness and distress between a sensationalist newspaper publication when compared to internet or social media comment.

"Publication by The Sun on Sunday would have been a serious and damaging breach of the rights of PJS and family members and the Supreme Court is to be commended for preventing that breach.

"The Sun on Sunday and other tabloids hoped that this case would mark the death knell for the privacy injunctions; in fact it has given them new life.

"PJS should be admired for his tenacity."

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