The PJS celebrity injunction case: what to look out for, and what to think about

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.

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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.

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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.

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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.

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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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Press regulation: what you need to know about “Section 40”

29th April 2016

The “section 40” is a provision in the Crime and Courts Act 2013.  It will be put into effect when John Whittingdale, the Secretary of State, decides.

Some have contended that the delay in implementing the provision is for no good reason. A few go further and suggest the delay can be attributed to the alleged hold the London press have over Whittingdale by reason of not publishing information about his private life.

As I set out over at the Financial Times website today, I believe the better explanation is that the legislation is a dreadful dogs dinner, and that no responsible Secretary of State would implement it – at lest in present circumstances.

Section 40 is controversial. Hacked Off and its allies demand that it be implemented without delay – see here and here.  Alternatively, the media campaigners at 89UP warn that it will have a profound chilling effect.

Section 40 has now become a totem in the debate about press freedom.

In my view, section 40’s problems come down to what it actually says.

Section 40(1) tells you what it covers – in effect it means claims for media torts (mainly libel or privacy) against “relevant publishers” (mainly news organisations).

Sections 40(2) and (3) then deal with who pays for the costs of such cases.  Both seek to alter the usual position that “costs follow the event” – ie the loser in a claim pays the winner’s costs.

Section 40(2) tells you that the news publishers should not generally have to pay legal costs in respect of those claims as long as they are members of an “approved regulator” with an arbitration scheme.  This provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

This provision is a “carrot” – it is to provide an incentive for publishers to join an “approved regulator”.

The real problem is with section 40(3). This is the “stick”.

Section 40(3) tells you that the news publishers should generally have to pay legal costs – including those of the claimant – in respect of those media tort claims if they are not members of an “approved regulator” with an arbitration scheme.  In effect, as long a claim is arguable, the publisher will have to pay both side’s costs, even if the publisher wins at court.

As with section 40(2), this provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

And again, this provision is to provide an incentive for publishers to join an “approved regulator”.

One key issue with this is that (a) there is no approved regulator yet and (b) the one regulator which is likely to get approval – IMPRESS – has hardly any members.  Most publishers are members or IPSO – which does not want recognition – or (like the Financial Times, Guardian, and Private Eye) do not want to be members of any external scheme at all.

This means the vast majority of the UK news media will be under section 40(3) costs risks once IMPRESS becomes approved.

For me the worry is not that section 40(3) will have a certain impact but that it will be uncertain. It is a dire piece of drafting.

As I set out over at the Financial Times:

To take four examples:

– What is “a relevant publisher”? (The schedule to the Act on exceptions to this definition is not clear.)

– When would it “have been reasonable in the circumstances for the defendant to have been a member [of a scheme] at that time”?

– What does it mean that “the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator”?

– And, most importantly, when will it be “just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs”?

On the last point alone, one can imagine judges routinely disregarding the general rule and awarding costs as they do now, as that would be “just and equitable in all the circumstances”.

If section 40(3) takes effect, there would be immediate and expensive uncertainty. So hedged is it with qualifications and exceptions that litigation is inevitable. The Leveson report called for a system that was “fair, quick and inexpensive”. What this provides is anything but.

In other words – section 40(3) will create far more problems that it solves, with the real prospect of expensive and lengthy litigation as each loophole and technicality is explored.

If section 40 is be implemented at all – and when it was enacted, the failure of an approved regulator to have almost no members was not envisaged – then it should only be once an approved regulator with an arbitration scheme is up and running.

As I conclude at the Financial Times:

Looking at the detail, rather than just the totemic significance, reveals it as a worrying and unstable provision. The secretary of state is quite right to delay bringing section 40 into effect, at least until there is a recognised regulatory scheme with a functioning arbitration service. To bring it in earlier, would be so irresponsible that no responsible politician should do it.

One does not need to look for lurid explanations for the hold the media supposedly have over a cabinet minister to explain why section 40 should not be implemented lightly. It is not a dominatrix in a relationship but the devil in the detail which provides the explanation for why it should be delayed, if not repealed altogether. It is simply a bad provision.

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