England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/03/2012

Mr Justice Tugendhat :

1. On 26 March 2012 I heard an application in public by Mr Browne QC for the continuation of a non-disclosure order until the trial of this action or further order. I made the order. It prohibits the publication or disclosure of any film or video of the Claimant engaged in a sexual act or any part thereof or stills there from. There are further provisions: limiting access to the documents; relating to service of the claim form on Defendants who are either not known, or whose whereabouts are not known; and for protection of the hearing papers. These are necessary if the purpose of the proceedings is not to be defeated. Because of the particularly personal and intrusive nature of the information, there is no public domain proviso. The defendants are permitted to disclose the material to legal advisors for the purpose of obtaining legal advice in relation to these proceedings. Subject to these specific points, the order is substantially in the form of the Model Order in the Guidance on Non-Disclosure Orders issued by the Master of the Rolls in August 2011.
2. The Third Defendant was present in court and represented. He had also made a witness statement dated 26 March 2012. He agreed that the Order should be continued. The Third Defendant was a few years ago the boyfriend of the Claimant, when they were both in their teens. She is well known as a singer and for her other roles in public entertainment. The Third Defendant is also involved in the music industry. She alleges that the two of them are the couple appearing in the video which has recently been made available on the internet, and which has been referred to in the media elsewhere. He does not dispute that he is the other person in the video. He states "I am disgusted that it has been [made public] and regret ever allowing the Claimant to persuade me that we should film ourselves at all". She states that the filming was by him. I made directions for the trial of the action in order that the disputes of fact can be resolved.
3. At the hearing I stated that I would give my reasons for continuing the non-disclosure order, and these are they.
4. The First Defendant is responsible for an internet website www.rundat.co.uk. The Second Defendants are defined by reference to the information the publication or disclosure of which is prohibited by the order.
5. This judgment is in an interim application. So it contains no findings of fact by me. But the background as set out by the Claimant is as follows. In August 2011 the Claimant's Public Relations agent, Mr Simon Jones, was informed by The Sun newspaper that an attempt had been made to sell to it the footage of the Claimant engaged in sexual activity. Mr Jones was not told who was offering the tape for sale, nor was he given any further details. The Claimant states that she was not given access to the footage, notwithstanding her requests, and that she did not recall the making of the footage, or any footage of that kind. That explains why Mr Jones made a public statement on her behalf that the tape was a fake, and that she had never allowed anyone to film her having sex. This statement was reported in The Sun.
6. In October 2011 the Claimant states that she was informed that the Third Defendant had approached Playboy attempting to sell what she understood to be the same footage which had been offered to The Sun. She did not see the footage at that time.
7. On 25 October 2011 the solicitors for the Claimant Lewis Silkin LLP wrote to the Third Defendant, requiring him to cease attempting to sell the tape, to deliver it up, to disclose to whom it had been disclosed, and to enter into a confidentiality agreement.
8. On 28 October 2011 the Third Defendant replied. He stated that video images had been made of them having sex during their relationship, but he said they were made exclusively by the Claimant, and that he had no copies. He said that he had not attempted to sell any such tapes and objected to the suggestion that he had. He referred to other publicity in the press about the Claimant, and argued that any claim by her should fail on that account (that was not an argument that was raised before me).
9. On 23 November 2011 Lewis Silkin wrote threatening proceedings.
10. On Saturday 17 March 2012 Mr Jones became aware of the availability on the internet at a website nottulisa.com of video images showing the Claimant engaged in a sex act. It was available for download. E-mails sent to the web address given on that website bounced back.
11. On 19 March 2012 the Claimant became aware that the video was available for viewing, without charge or other restriction, on a website pappzd.com. Lewis Silkin who wrote by e-mail demanding the removal of the video.
12. On Monday 19 March 2012 the court was notified that the Claimant wished to seek injunctive relief at about 1pm. However, before any application was made the material was removed from the pappzd.com website. So no application was in fact made at that point.
13. Shortly afterwards the Claimant learnt that the video was available elsewhere, including at a website vasjmorgan.com and rundat.co.uk. Enquiries by Lewis Silkin revealed that the First Defendant was responsible for rundat.co.uk. He was given notice that the Claimant would apply to the court for an injunction if the material was not removed.
14. At 4pm on 19 March the application was made to me. That was before the issue of a claim form, in accordance with CPR Part 25 and the Practice Direction, and the Claimant gave to the court the undertakings required for such applications. There had not been time to prepare any witness statement or affidavit, and the facts were explained to me by Mr Browne, subject to the undertaking to file a witness statement setting out the information given to the court. The hearing was in private. The court was informed that the Claimant accepted that the person described as her on the website and appearing in the video was indeed herself. The court was also informed that she had denied that she was the person appearing in the video offered to The Sun in August 2011, which she had not then, and still has not seen. She had not previously confirmed that in any statement made out of court. I made an order to run until the return date, 26 March. In that order the information of which disclosure was prohibited was: "A film of the Claimant engaged in a sexual act apparently shot on a mobile telephone or any part thereof or stills therefrom".
15. Statements in the media that she had submitted a witness statement to the Court, and that at one of the hearings on 19 or 20 of March she had told the court that the video available on the internet was a fake, are both incorrect.
16. In accordance with the undertakings given to the court, a claim form was issued together with an application notice seeking the continuation of the interim relief at the return date.
17. However, on Tuesday 20 March 2012, before the return date, Mr Jones was informed by Mr Smart, the editor of The Sun's show business column, that an attempt had been made by the Third Defendant's agent to sell two additional videos of himself and the Claimant engaged in a sexual act. Mr Smart was told that if the Third Defendant was unable to sell the footage in the UK he would try to do so in the US. Accordingly the order made on 19 March was served on the Third Defendant by e-mail.
18. However, those advising the Claimant were concerned that the form of the order on 19 March might not cover a different video. At about 6 pm on the same day they therefore applied to myself for permission to extend the definition of the material to be protected so that it included: "Any film or video of the Claimant engaged in a sexual act or part or stills therefrom". I heard the application by telephone Mr Browne informed me that the Metro newspaper reported that Third Defendant had said in a Tweet that the videos had nothing to do with him.
19. At 19.46 that evening the Third Defendant was informed by e-mail of the substance of the order and steps were taken to serve him.
20. On 21 March 2012 an Amended Claim Form was issued naming the Third Defendant as a defendant.
21. Meanwhile attorneys in the USA had been retained by the Claimant with instructions to take legal action to have the video footage removed from the websites in the USA, if that proved necessary.
22. On 21 March 2012 the Claimant prepared a video of herself which she had posted on YouTube. She accepted that it was herself in the footage with the Third Defendant, she spoke of the severe impact that the disclosure had had upon her, and she blamed the Third Defendant for its disclosure on the internet.
23. At each of the three applications made to me I have had regard to the Human Rights Act s.12. This requires that no injunction be granted to restrain publication before the trial of an action unless the court is satisfied the applicant is likely to establish that publication should not be allowed.
24. The elements of the law of privacy applicable to cases such as the present have been set out on numerous occasions in different judgments of the House of Lords, the Court of Appeal and this court. The first question that a court has to ask itself is whether a person has a reasonable expectation of privacy. In Campbell v MGN [2004] 2 AC 457 at para 49 the House of Lords formulated the test as follows:

"The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the Claimant had faced the same publicity".

25. For years before the passing of the Human Rights Act 1998, the court heard applications for injunctions based on the law of confidentiality, as it was then understood, to restrain the publications of details of their sexual lives. See e.g. Stephens v Avery [1988] Ch 449 and Barrymore v. News Group Newspapers Limited [1997] FSR 600. Details of a person's sexual life have thus been recognised for very many years as high on the list of matters which may be protected by non-disclosure orders. It has also long been recognised that photographs are more intrusive than a verbal or written description. In the case of intrusive and intimate photographs of the kind in question in this case there is no real prospect of a defence of public domain: Douglas v Hello! [2005] EWCA Civ 595; [2006] QB 125 paras [105]-[107]:

"105. … Once intimate personal information about a celebrity's private life has been widely published it may serve no useful purpose to prohibit further publication. The same will not necessarily be true of photographs. Insofar as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph, is confronted by a fresh publication of it. To take an example, if a film star were photographed, with the aid of a telephoto lens, lying naked by her private swimming pool, we question whether widespread publication of the photograph by a popular newspaper would provide a defence to a legal challenge to repeated publication on the ground that the information was in the public domain. There is thus a further important potential distinction between the law relating to private information and that relating to other types of confidential information.

106. Nor is it right to treat a photograph simply as a means of conveying factual information. A photograph can certainly capture every detail of a momentary event in a way which words cannot, but a photograph can do more than that. A personal photograph can portray, not necessarily accurately, the personality and the mood of the subject of the photograph. It is quite wrong to suppose that a person who authorises publication of selected personal photographs taken on a private occasion, will not reasonably feel distress at the publication of unauthorised photographs taken on the same occasion.

107. There is a further point. The objection to the publication of unauthorised photographs taken on a private occasion is not simply that the images that they disclose convey secret information, or impressions that are unflattering. It is that they disclose information that is private. The offence is caused because what the claimant could reasonably expect would remain private has been made public. The intrusion into the private domain is, of itself, objectionable. "

26. As already noted, the Third Defendant does not suggest that there is any reason why a court should not grant an injunction in this case at trial. He himself supports the making of a non-disclosure order.
27. Very many persons have been served who are within this description of the Second Defendant. None of them has suggested that there is any basis in law for resisting a non-disclosure order. The steps taken by Lewis Silkin have been so successful that, at the time I heard the application on 26 March, the evidence was that people were making postings on the internet complaining that they could not find on the internet a copy of the video or videos the subject of my order.
28. It was for these reasons that I continued the non-disclosure order. The case will now proceed to trial in the usual way in accordance with the CPR.