Court of Appeal decides 'celebrity threesome injunction' should be lifted

An injunction prohibiting the publication of a celebrity's extra-marital 'threesome' has been lifted by the Court of Appeal following an application from News Group Newspapers Ltd, publisher of the Sun on Sunday.

Giving judgment, Lord Justice Jackson, sitting with Lady Justice King and Lord Justice Simon, insisted that the court's original decision to impose the injunction had been legally correct.

However, he admitted that recent leaks online had 'reduced the likelihood of the claimant obtaining a permanent injunction when the case comes to trial'.

While the Court of Appeal allowed the publisher's application, the injunction remains in place until 1:00pm on Wednesday so that lawyers for the celebrity can launch an appeal to the Supreme Court.

The injunction has caused controversy in recent weeks after overseas media outlets, in Scotland and in the US in particular, published details of the case and the identities of the parties involved, known in court papers as 'PJS', 'YMA', 'AB', and 'CD'.

Sitting in the High Court, Mr Justice Cranston had refused an application by 'PJS' to halt publication of the story. However, at a hearing on 22 January 2016 the Court of Appeal allowed the celebrity's appeal.

Representing News Group in a hearing last week, Gavin Millar QC of Matrix Chambers argued that there had been a material change of circumstances since the injunction was granted and that, as a result of publication overseas and online, the protected information was no longer private.

Millar also argued that the case had stimulated a public debate about privacy injunctions. This followed numerous editorials across the UK press, including extensive criticism of the court's decision.

On 10 April 2016, the Daily Mail published an article entitled 'Why the law is an ass!', while the Sun attacked the court's order, arguing that judges should not act as 'moral arbiters' of stories of which they 'sniffily disapprove'.

In a rebuke to the media's handling of the injunction, Jackson LJ said it 'cannot be permissible for the media to stir up a debate about an injunction to which they are subject and then rely upon that debate as a ground for setting aside the injunction'.

Amber Melville-Brown, head of the media and reputation team at Withers, criticised the media's handling of the case.

'If this case is about a threesome, it is about: how to deal with porous national borders vis a vis internet publications; the impact of a potentially fatal blow on a major protection for the people versus the press; and the extent to which our courts can operate when the public on social media and elements of the press disrespect the letter and the spirit of the law and, via their publications, effectively tell our judiciary that they don't give a fig about their considered decisions, under the guise of free speech.

'If this decision stands, the only way to disincentivise the media from rooting through people's privates with impunity is to hit them hard where it hurts, in their pockets. Those whose privacy continues to be invaded must stand up for themselves and take a stand against the press.'

Melville-Brown said the courts should be robust in using the as yet untested provisions of the Courts and Crime Act 2013, which allows for exemplary damages to be awarded against publishers who are not members of an approved regulator, as 'that will be the only way left to curtail the wildest excesses of the press'.