19th May 2016
NOTE: This post now overtaken- the Supreme Court maintained the injunction.
Later this morning the Supreme Court will hand down its decision in the PJS v News Group Newspapers case (the Supreme Court page is here).
At one level – the most most basic one – this is all futile: everyone knows who the case is about. That is everyone who cares about it; one suspect many people do not know just because many people do not care.
But the case is still significant and there are still things to look out for.
First: it is important to remember that, in procedural terms, this case is about an interim injunction, and not a final injunction. An interim injunction is there to “hold the ring” until the substantive claim can be dealt with. The idea is that a court order will temporarily freeze things in time, almost like magic.
In this case the interim injunction is there to keep the private information private until a court can decide whether there has been a misuse of the private information; and if that private information is no longer private then the “genie” is “out of the bottle”.
But if that genie is out of that bottle then there can still be a final hearing. There can still be an issue to be tried. It is just that an interim injunction may serve no further useful purpose; the “discharge” (ie, lifting) of an interim injunction does not by itself mean that the case will fall away – though in practice, the claimant may just give up, as the interim injunction was the real objective.
Second: there is the question of remedies.
The problem the Supreme Court faces is that the tort of misuse of private information is at risk of being a cause of action (ie, a legal claim) without a remedy. In other words the tortfeasor (a lovely legal word for wrong-doer) can do what they want, and there is nothing the wronged party can do about it.
If an injunction is futile – either as an interim or final remedy – when there is a misuse of private information – then what should a court order? It can hardly order that non-private information be somehow made private again.
The obvious alternative remedy is damages. The point here though is that damages for misuse of private information are (relatively) low, and that there is case law which suggests that “exemplary” damages are not available for the tort of misuse of private information.
What the Supreme Court may be up to – and they have taken nearly a month to decide what is a case about an interim remedy – is recasting the law on privacy and remedies, so that a claimant in an action for misuse of private information is not left without an effective remedy if that information can be kept private by an interim or final injunction.
If so: then what may seem a tactical victory for the press – “Hurrah, this daft injunction has been discharged” – may turn out to be a strategic mistake.
In the law of libel there are very few injunctions – the principle is “publish and be damned” – as any wrongdoing is dealt with by damages (and costs). And there was (and is) “libel chill” as a consequence. Injunctions are not always the problem, and if the Supreme Court make it easier for a claimant in privacy cases to claim substantive (and exemplary) damages in privacy cases when injunctions become futile, one could question whether this would be a triumph for the press.
Third: costs and commercial reality.
Legal actions are expensive. The costs for News Group Newspapers in this action will exceed any additional sales they will ever get out of this story. At a time of diminishing budgets for newspapers, this is the sort of legal action which cannot be contested very often, if at all.
And when the primary grounds for discharging the injunction is that by reason of social media and foreign (ie US and Scottish) publications, the information is already effectively public, then contesting a privacy injunction is commercially nonsensical. In a way, the news title is relying on its own lack of importance as a news source.
I set out at the FT that such actions are to a large extent a “privacy dance” – a performance by the parties involved to demonstrate things to others.
But it is not all an exercise in superficiality: there are considerable problems in this case.
Can the courts provide a meaningful interim or final remedy to those complaining of the misuse of private information?
Can the press afford the damages and costs of contesting claims for the misuse of private information?
Everyone may know who the PJS case is about, but few if anyone know the answers to these questions.
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