The artist subsequently known as PJS.
Never underestimate the potential for judges to go against accepted wisdom (judgement PDF), especially when they notice something that's passed everyone else by. IPSO's code of practice, Lord Mance notes, states that an "exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16". You could of course argue that consenting adults should consider the potential consequences for their children of extra-marital activities, regardless of the agreement of both partners, not least because of the obvious potential for it to cause difficulties down the line. This is not by any means though a justification for a story that all the justices agree has no public interest defence whatsoever to be published.
Indeed, I would argue that it's possible in this case to respect the arguments of both Lord Mance for the majority in over-turning the Court of Appeal ruling that the injunction should be set aside, and Lord Toulson in his lone dissension. It's hard not to respect a judge who risks incurring the wrath of Paul Dacre by directly referencing the paper claiming the law to be an ass due to the publication of PJS's identity elsewhere; if that is the price of applying the law, Mance writes, it is one which must be paid. The court is well aware of the lesson which King Canute gave his courtiers, Mance goes on, in answer to the claims that injunctions in the age of the internet are defunct, with the Lord later quoting a previous ruling by Justice Eady "that wall-to-wall excoriation in national newspapers, whether tabloid or ‘broadsheet’, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up". I would argue that distinction still holds up today, if barely: there is a huge difference between a story appearing on multiple newspaper front pages, available for anyone to see at petrol stations, supermarkets, newsagents etc, whereas online it is still possible to avoid such stories altogether if you so wish.
Lord Toulson disagrees, writing that the "court must live in the world as it is and not as it would like it to be", and also that "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". Toulson does not "underestimate the acute unpleasantness for PJS of the story being splashed, but I doubt very much in the long run whether it will be more enduring than the unpleasantness of what has been happening and will inevitably continue to
happen. The story is not going away".
It most certainly isn't. The only reason that the papers have been full of stories for the last couple of weeks about a certain Downton Abbey actor are due to a certain injunction still being in place from years ago. One way or the other, the British media will get a story they want to be out in the open out in the open. They might not make any money out of it, quite the contrary in the case of the Sun, with its legal fees likely to be astronomical, but for those who want to know they'll probably be able to find out. If the case going to trial, with PJS and YMA likely to win, gives them satisfaction and protects their children, then great. More likely however is that Carter-Fuck will go on getting richer while the kiddiwinks will find out one of their parents is partial to threesomes regardless.
All the same, coming in the same week as the IPSO decision that the Sun blatantly breached the editors' code of practice over the QUEEN BACK BREXIT bullshit, with the paper throwing its toys out of the pram in response, saying yes, the headline was a complete lie, but the one underneath "qualified" it, and the Queen isn't above politics anyway because she called the Chinese rude, for those of us whom enjoy schadenfreude, it's been a fine time. Long may it continue.