Robin Callender Smith picks his way carefully through the celebrity/privacy minefield
Issues of world-wide identification and information on the internet in respect of privacy rights, celebrities and English law reignited in January this year. The Sun on Sunday began its attempt to tell readers about PJS's 'three-way' with A and B with the full knowledge of his married partner YMA.
Jonathan Coad's 26 April 2016 Huffington Post piece here neatly sets out the chronology and encapsulates a claimants' approach to the events involving tabloid journalism.
My view, unsurprisingly, is summarized by Lord Toulson's dissenting judgement at the end of the Supreme Court's final decision in PJS  UKSC 26. But then I was a duty pre-production barrister on The Sun on Sunday when Mr Justice Cranston refused to impose the injunction, but gave permission to take the matter to the Court of Appeal, where the injunction was first imposed and subsequently lifted.
So read what follows in the context of that declaration of interest and the fact that I am bound by the terms of the injunction until trial or further order.
There are two features that make this case significantly different from the 2011 case of former Manchester United footballer Ryan Giggs – at whom fans from rival Premiership teams chanted 'CTB, CTB, CTB' following his social media/internet, and subsequent Parliamentary, outing.
These differences are relative parochialism and the subsidiary privacy rights of children.
Firstly, Ryan Giggs – in the scheme of internet publication – was only an English Premiership footballer. The impact of and interest in his serial infidelities – eventually resulting in his (then) wife (Stacey) and his brother's wife (Natasha) having a very public spat about their 'bedding' rights with him – was, in that sense, a more local issue.
Additionally, the privacy rights of the Giggs' young children were never placed in the balance in the various iterations of that case. That may be because the effect of Baroness Hale's February 2011 decision in ZN Tanzania  UKSC 4 had not been absorbed.
It is clear from the Court of Appeal case of Weller  EWCA Civ 1176, and the Supreme Court's refusal to entertain Associated Newspapers' request for permission to appeal, that the privacy rights of the children of celebrities are being given enhanced protection….even if the Court of Appeal missed the chance to define with any specificity the meaning of 'child' in such proceedings.
The second difference is the courts' view of the role of the celebrities' children in the various iterations of the case. In the High Court their rights were apparently not given the weight that was then identified in the first Court of Appeal decision, where they were the decisive factor in granting the injunction. The second Court of Appeal decision discharged the injunction because 'the children would get to hear about the story anyway'....a major shift in opinion from what was, effectively, the same court (plus one additional Lord Justice of Appeal).
The composition of the Supreme Court in its judgment included Baroness Hale who did not explicitly refer to her ZN Tanzania pronouncements, where she said, in effect, that children are not responsible for the idiocies or foibles of their parents. However, the children in ZN were due to be deported from the UK to a country they had never seen with their unlawfully-overstaying mother. That is a far cry from the factual situation which apparently engaged, and significantly weighed in favour of the injunction, the Article 8 private life rights of these celebrity children.
Instead, having specifically dismissed the 'children as a trump card' canard, Baroness Hale arguably re-cooked it by emphasizing (at ) that the children's interests were likely to be affected by a breach of the privacy interests of their parents when they had independent privacy interests of their own which attracted independent respect in terms of their family life.
She then went on to point to the 'particular regard' that the court had to give to 'any privacy code' by virtue of s 14(4)(b) of the Human Rights Act 1998, mentioned by Lord Mance at – and the requirement that 'editors must demonstrate an exceptional public interest to override the normally paramount interests of [children under 16]'.
Lord Mance references the IPSO code that came into force in January 2016 reflecting the provisions of the earlier PCC code.
But it is perhaps a mistake to read across and interpret para 6 of the Code, which relates to children as school pupils and as the subject of interviews, the provision at para 6(v) that 'editors must not use the fame, notoriety or position the parent or guardian as sole justification for publishing details of a child's private life' or para 7, relating to children as victims or witnesses in sex cases, in this way in this case.
The children in PJS, while they have Article 8 private life rights that receive the benefit of the balancing exercise in the totality of this case within the principles set out by Lord Steyn in Re S  UKHL 47, are not the focus of this story but only tangential. They were and are 'non-parties'.
It is also worth noting that in Re S Lord Steyn permitted the identification of the child in question – albeit arising out of criminal proceedings – on the basis that:
'…while counsel for the child wanted to confine a ruling to the grant of an injunction restraining publication to protect a child, that will not do. The jurisdiction under the ECHR could equally be invoked by an adult non-party faced with possible damaging publicity as a result of a trial of a parent, child or spouse. Adult non-parties to a criminal trial must therefore be added to the prospective pool of applicants who could apply for such injunctions. This would confront newspapers with an ever wider spectrum of potentially costly proceedings and would seriously inhibit the freedom of the press to report criminal trials.' (at )
Finally, for those wishing a masterclass in the arguments advanced on both sides to the Supreme Court, the arguments presented on 21 April 2016 respectively by QCs Desmond Browne and Gavin Millar are recorded (at least for the moment) on the Supreme Court's website. As a practical example of Open Justice, advocacy and the interaction of legal argument at its highest level - involving the most sensitive of areas - it deserves a special award.
Unfortunately a link to the relevant hearing cannot be provided because of the following rider on the website:
'This footage is made available for the sole purpose of the fair and accurate reporting of the judicial proceedings of The UK Supreme Court. Although you are welcome to view these proceedings, the re-use, capture, re-editing or redistribution of this footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.'
Having avoided contempt in any identification of the celebrities in question I would not wish to place SCL's editor and myself before the Supreme Court by disobeying that rider.
Robin Callender Smith is Professor of Media Law at the Centre for Commercial Law Studies, Queen Mary, University of London. His book 'Celebrity and Royal Privacy, The Media and the Law' was published by Sweet & Maxwell in December 2015.