The celebrity seeking to ban The Sun and others from revealing he was involved in an extra-marital threesome with another couple has had an injunction maintained by the Supreme Court pending a full trial.
A high profile married entertainer today struck a blow for the right of celebrities to keep their “unappealing” sexual activities secret when the Supreme Court ruled that an injunction against The Sun on Sunday should remain.
The court ruled by four votes to one that there was no public interest in the publication of this “prurient” story.
Even though the individual has been widely named online in the UK, and in print in the US and Scotland, the court held that to lift the injunction now would unleash a further damaging “storm”of publicity which would invade the privacy of the celebrity couple and their young children. The interim injunction remains in place pending the outcome of a full trial.
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The Supreme Court said the interim injunction should stand pending a full trial, overturning a decision last month from the Court of Appeal that it should be dropped because the information was no longer confidential.
The decision paves the way for more such injunctions because the court said the celebrity was likely to win at trial.
Lord Mance said: “Without the injunction, there will be further unrestricted and extensive coverage in hard copy as well as other media in England and Wales, and the purpose of any trial will be largely undermined.”
Despite widespread coverage of the story online, Mance said Sun on Sunday publisher News Group Newspapers sought to “add extensively and in a qualitatively different medium to such invasions, without, on present evidence, having any arguably legitimate basis for this and at the risk only of having to pay damages after a trial”.
He said that the law is there to “protect the legitimate interests of those whose conduct may appear unappealing, as well as of children with no responsibility for such conduct”.
He said NGN was yet to provide any evidence a public interest “in a legal sense, however absorbing it might be to members of the public interested in stories about others’ private sexual encounters”.
Responding to those who will say today’s ruling is futile attempt at holding back the unstoppable tide of online publicity about the case, he said: “The Court is well aware of the lesson which King Canute gave his courtiers.
“Unlike Canute, the courts can take steps t enforce its injunction pending trial.
“As to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid.”
And he noted that this is a principle which can work on the side of the press, noting the 1768 case in which Lord Mansfield set aside the “outlawry” charge against John Wilkes for publishing the North Briton saying “the law must be applied even if the heavens fell”.
Mance said: “It is unlikely that the heavens will fall at our decision.
“It will simply give the appellant, his partner and their young children a measure of temporary protection against further and repeated invasions of privacy pending a full trial which will not have been rendered substantially irrelevant by disclosure of relatively ancient sexual history”.
The sexual encounters in question date back to 2009 and were brought to The Sun by one of those involved (AB) in January this year.
The interim injunction was granted at this point and worked for 11 weeks until AB got their story published in the US.
Despite the extensive publication of the story online in the UK since then, Mance said: “There is little doubt that there would be a media storm”, if the injunction was lifted now.
He said: “It would involve not merely disclosure of names and generalised description of the nature of the sexual activities involved, but the most intimate details.
“This would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by the appellant, his partner and, by way of increased media attention now and/or in the future, their children.”
He said the court erred by not taking this “qualitative difference” in the level of coverage into account.
The one dissenting judge, Lord Toulson, sided with the Court of Appeal and said: “In this case I have reached a clear view that the story’s confidentiality has become so porous that the idea of it still remaining secret in a meaningful sense is illusory. One it has become readily available to anyone who wants to know it, it has lost the essence of confidentiality.”
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