If you’re reading this, I am pretty sure you will already know the real identity of PJS and YMA – the pseudonyms of a well-known celebrity married couple – who have been fighting since January to keep their names out of the British press. But in 2016, when the internet and social media drive and dominate the news and secrets are exposed daily, what hope is there of protecting privacy when courts are restricted by geographical jurisdiction?
The injunction, valid in England and Wales, was effective for eleven weeks before a US publication printed the real names of the celebrity protagonists on 6 April 2016, together with details of allegations of a three-way sexual encounter. Since then, further details of the relationship and the names of those alleged to have been involved spread across the world wide web. It wasn’t long before the story was shared across social media, with users in the UK scrambling to find the information and share it with their followers. Where social media is concerned, speed can mean power. If you are the first to break a story, it will be your name (Twitter handle or Instagram account) that will be featured in the national or international news, bringing with it a raft of new followers. Anyone who thinks social media isn’t about being popular is mistaken or misguided.
But what of the story now? Well, at the time of writing, the story has been printed by a newspaper in Scotland, discussed on mainstream TV in England (albeit on a no names basis) and shared extensively across global social media, where geographical boundaries are non-existent. The case then re-emerged in the Court of Appeal, with lawyers on behalf of the Sun on Sunday owner News Group Newspapers Ltd, arguing that the information the injunction sought to protect was now in the public domain. In the judgment many examples were presented to prove that the identities of PJS and YMA are no longer secret and that any damage that might have been caused has already been done. In fact, the only defence seemed to be that the lawyers for PJS and YMA have been playing ‘whack a mole’ with any stories that have popped up on the web. It was a game they would prove unable to win, with the Judge in the case declaring it a ‘hopeless task’. Even with the support of Google, which blocked details appearing on its search engine in England and Wales, the information was freely available on social media or through VPNs.
The case goes on…
The Court of Appeal agreed with the Applicant, declaring that details of the allegations were now “so widespread” that confidentiality had “probably been lost” and that to continue the injunction would effectively be pointless. Although a full hearing would follow on the Applicant’s right to privacy claim, the injunction was no longer warranted and, subject to appeal to the Supreme Court, the injunction would be lifted by operation of time.
To the surprise of many (and great cost to the parties), PJS did submit an appeal the Supreme Court. That was heard today, with a decision yet to be announced. Although there is no indication of when the decision might be heard, the Supreme Court president Lord Neuberger said the panel of five justices would hand down their decision “as soon as we can”.
The question now raised is no longer about the identity of those involved, but how realistic it is to expect matters to remain private in the internet world, in spite of an injunction prohibiting disclosure of names, details or even – in the case of super injunctions – if the injunction itself exists! Each country will have its own court to determine what can and can’t, should and shouldn’t be made public, each according to its own laws, precedent and rules. For an individual or company that has global fame and worldwide recognition, there is a very real issue about how privacy and other human rights can ever be protected. Certainly, without great commitment, time and expense, the protection, policing and enforcement of any rights is an impossible task. Although the European Courts have gone some way to set levels and expectations across the continent, that has little influence over America and other significant jurisdictions.
Of course, without international civil and human rights laws, there will never be an international court to adjudicate on them. But with the world wide web and the global reach of social media, perhaps it is time to look again and to consider if this might be in anyone’s interest?