An entertainer has prevented a tabloid newspaper from printing details of his extramarital affairs in a case that is expected to trigger a fresh round of legal battles between celebrities and newspapers over privacy injunctions.
The well-known individual who is referred to in the judgment of the case by the initials PJS, and his wife, referred to as YMA, are both described as public figures. He is reported to have had a “three-way sexual encounter” with another couple more than four years ago.
The couple approached the editor of the Sun on Sunday newspaper, Steve Kennedy, in January this year and told him about their relationship with PJS. The paper, which planned to publish the story, contacted the entertainer’s lawyers, initiating a courtroom dispute.
But the court of appeal ruled that the Sun on Sunday cannot publish the story because the entertainer, who has an “open relationship” with his wife, had an expectation that his sexual encounters would remain private.
The ruling implies a more expansive interpretation of privacy in terms of sexual activity. The judge also considered the impact the likely “media storm” would inflict on the young children of PJS and YMA.
The anonymised judgment, released last week, comes amid a surge in contested cases involving the courts shielding celebrities’ identity. This is the first privacy injunction battle to reach the court of appeal since 2011.
On the evening of Friday 18 January, lawyers for PJS and YMA applied for a ban on publication by the newspaper. They failed to persuade the high court judge at that time but were granted an interim injunction allowing them to appeal against the decision to the higher court.
“The claimant is in the entertainment business and is married to YMA, who is a well-known individual in the same business,” Lord Justice Jackson explained in the appeal court judgment.
“In 2007 or 2008 the claimant met AB. There is a conflict of evidence as to whether they met through a mutual friend or on Facebook. The claimant and AB had occasional sexual encounters starting in 2009.
“AB already had a partner, CD. In a text message exchange on 15 December 2011, the claimant asked if CD was ‘up for a three-way’. AB said that CD was. Accordingly, the three met for a three-way sexual encounter which they duly carried out. After that encounter, the sexual relationship between the claimant and AB came to an end, but they remained friends.”
Describing PJS and his wife as a “committed couple”, the appeal court judge observed: “On the evidence of both of them, the claimant’s occasional sexual encounters with others do not detract from that commitment.”
Gavin Millar QC, for News Group Newspapers, had argued that because PJS and YMA had put details of their relationship into the public domain it was in the public interest that the newspaper should publish an account of his sexual encounters with others.
“Were the claimant and YMA presenting an image of monogamy to the world?” Jackson asked rhetorically before concluding: “If the [Sun on Sunday] publishes the proposed story, this will not set the record straight in any material respect.
“It will simply reveal that one feature of the claimant’s and YMA’s long-term relationship is that the claimant is allowed to have occasional sexual encounters with others. That would provide supplementary information, but it would not correct a false image. ‘Kiss and tell’ stories about a public figure which do no more than satisfy readers’ curiosity concerning his private life do not serve the public interest.”
Hugh Tomlinson QC, for PJS, said that his right to privacy should be protected. Jackson agreed: “The proposed story, if it is published, will be devastating for the claimant.
“There is also the position of the children to consider. The proposed article would generate a media storm and much public interest in the claimant’s family.
“Even if the children do not suffer harassment in the short term, they are bound to learn about these matters from school friends and the internet in due course. That is a factor to place in the balance.” The judge extended the interim injunction until any further order is made.
The number of claims coming before the courts had in recent years fallen away following the Leveson inquiry into press ethics and restrictions imposed by senior judges on the granting of superinjunctions where even the fact that an injunction has been granted cannot be reported. They have now begun to rise again according to the latest court statistics.
Commenting on the case, Sara Mansoori and Aidan Wills from Matrix Chambers said: “This decision is likely to assist claimants – particularly high-profile individuals – who are seeking to prevent newspapers publishing details about their private lives.
“This case demonstrates that the courts are willing to take a liberal view of how an individual chooses to conduct his or her private sexual life.”