Case of the Day: PJS v. News Group Newspapers Ltd.

The case of the day is PJS v. News Group Newspapers Ltd., [2016] EWCA Civ 100. PJS is a well-known English entertainer. No, I will not tell you who he is—it’s easy to find out on the web if you like. YAM was his spouse, also an entertainer. PJS and YAM had young children. PJS was the friend and occasional lover of AB, who had a partner, CD. In 2011, PJS propositioned AB and CD, and, as the judge wrote, “the three met for a three-way sexual encounter which they duly carried out.” AB and CD then told the editor of the Sun on Sunday about the tryst. When the editor reached out to PJS for comment, PJS brought a suit seeking to enjoin publication. He lost in the High Court and took an appeal.

The appellate court granted the injunction. The issue of law in the case was the balancing of the right to free expression under Article 10 of the ECHR against the right to privacy under Article 8. I don’t have much to say about that balancing. What I find interesting about the case is the cross-border dimension. A reader in the United States or Scotland can read all about the “news” if he wants. And a reader anywhere in the world, including in England or Wales, can read about the news via social media. So is English law in this kind of celebrity super-injunction case a “farce,” as Philip Davies MP has said? I think this is perhaps the kind of case where technological advances make a formerly sensible remedy (a publication ban in England) pointless, and indeed, PJS probably made things worse for himself and his family by seeking an injunction, because now many who would not have been interested in the story and who may not even have heard the “news” are interested indeed.

Second, I have to say I find part of the judge’s reasoning really puzzling. The newspaper claimed that PJS and YAM were “presenting an image of monogamy to the world,” and it was fair game, essentially, to correct the record. The judge rejected the argument, finding that in all the press clippings submitted to him, there were “just two references by the claimant to monogamy.” In essence, the judge was saying that PJS hadn’t really held himself out to the world as faithful to YAM. Hang on—they’re married. I know it’s 2016, but still, when you get married, aren’t you at least implicitly holding yourself out to the world as faithful to your spouse? This seems particularly relevant in PJS’s case, because a quick web search shows that PJS publicized his wedding extensively.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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