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
		10/10/2015

Mr Justice Popplewell

1. On Saturday 10 October 2015 I granted an interim non-disclosure order restraining the disclosure or publication of images and information in a so called "revenge porn" case. These are my reasons, in brief.
2. The Claimant is a successful professional actor. JPH had been in a relationship with XYZ for a number of months, during the course of which a number of photographs and videos were taken on devices belonging to JPH which portrayed nudity and sexual activity. On the afternoon and early evening of Friday 9 October 2015, XYZ sent a series of communications to JPH threatening to post the images on social media and/or to cause them to be published in magazines. It appeared that XYZ's motive was revenge for JPH having brought the relationship to an end; and, it is to be inferred, with a possible view to persuading JPH to resume the relationship. XYZ also sent an email to a former partner of JPH in which XYZ gave graphic details of alleged sexual activity by JPH whilst in a relationship with XYZ, and later sent the former partner two explicit videos. During the communications with JPH, XYZ stated that locked files with copies of the images had been lodged with two unidentified friends who would be authorised to cause them to be published should the police become involved. This was the reason for adding Persons Unknown as Second Defendants.
3. On the morning of Saturday 10 October 2015, shortly before the beginning of the hearing, a small number of the still images appeared on a website in circumstances from which it is to be inferred that they had been posted by or at the instigation of XYZ. By the time of the hearing JPH had succeeded in removing them from the site.
4. The application was made without notice. There were compelling reasons for doing so, in accordance with s. 12(2)(b) Human Rights Act 1998, because XYZ's conduct justified the belief that if prior notice were given there was a real risk that disclosure would occur before the hearing could take place so as to defeat its purpose.
5. The hearing was held in public. It was possible to do so without defeating the purpose of the order because:

(1) I made orders protecting the anonymity of JPH and XYZ. I was satisfied that this was necessary because some of the images had been put on a website, and the fact of JPH's previous relationship with XYZ was in the public domain. If a person who was aware of both those matters learnt that JPH had issued these proceedings or that they had been brought against XYZ, they would be able to deduce information about the content of the material or the circumstances in which the images were created which JPH is entitled to have protected by an interim non-disclosure order. Anonymity of JPH alone would be insufficient to protect against this risk because identification of XYZ might enable identification of JPH to be made. The principles in AMM v HXW (2010) EWHC 2457 (QB) apply.

(2) The images and information of which JPH was seeking to prevent disclosure were referred to during the course of the hearing in a way which did not reveal their detailed nature or scope. I read material contained in a confidential schedule to an approved but as yet unsigned witness statement of JPH and was shown some of the images on a mobile phone upon an undertaking that they would be included in the confidential schedule when the witness statement was signed. Conducting the hearing in this way was necessary if the purpose of the order was not to be defeated.

6. In order to provide further protection against unwarranted further access to the material I also made orders restricting access to the material on the Court file under CPR 5.4C and an order that the confidential material on the Court file was to be kept in a sealed envelope not to be opened except by or with the permission of a High Court Judge.
7. There is cogent, credible and as yet uncontradicted evidence that the photographs and videos were taken in circumstances where JPH has a strong case for asserting that he had a reasonable expectation of privacy and in circumstances attracting confidentiality. This engages his rights to respect for private and family life under Article 8 of the European Convention on Human Rights.
8. With these have to be balanced the right to freedom of expression under Article 10 of the ECHR. I was satisfied that the balance comes down firmly in favour of protection of JPH's Article 8 rights. The images and information involve intimate, graphic and sexually explicit material of a highly sensitive and personal nature. There is cogent and credible evidence that the effect of disclosure will be highly damaging to JPH both emotionally and financially. Damages would not be an adequate remedy. There is no discernible public interest in publication of the images or information. They concern private and lawful behaviour and there is nothing to suggest that disclosure would contribute anything to a debate of general interest in a democratic society. Any argument for protection of XYZ' s rights of freedom of expression in publishing images which portray XYZ, or in disclosing images or information created in the context of the relationship with JPH, carries little weight when the threatened publication is motivated by revenge and, it is to be inferred, possibly blackmail. The limited disclosure which has apparently already been made to JPH's former partner, the two holders of the files, and briefly on one website on Saturday morning, is no reason for declining to make the order. The material is not currently in the public domain and the limited distribution has not come close to the stage where there is no longer any privacy interest left to be protected.
9. Accordingly I was satisfied, in accordance with s. 12(3) of the Human Rights Act, and having had regard to the matters set out in s.12(4), that on the current evidence JPH is likely to establish that disclosure and publication should not be allowed.
10. At this stage of proceedings an order restraining publication and disclosure is necessary in order to protect JPH's rights. The material is likely to be widely disseminated if disclosed in the way threatened by XYZ and it would be very difficult, if not impossible, to contain it or to withdraw it from the public domain thereafter. XYZ's stated expectation and intention was that it would go "viral" and numerous references by XYZ to "hashtags" are to be construed as being to this effect.
11. Two further aspects of my order require explanation. I ordered that XYZ should provide information to JPH's solicitors comprising details of any third party to whom the information had already been passed and any internet sites on which it had already been posted. This aspect of the order required identification of the two alleged holders of files of the material, as well as that of anyone else to whom XYZ had already passed the material. This was intended to enable JPH's solicitors to give notice of the order to anyone else to whom XYZ had passed the material, or to take such steps as were possible to remove it from any website if it had been posted prior to service of my order. I ordered XYZ to provide this information within one hour of the order coming to XYZ's attention and required the solicitors specifically to draw this aspect of the order and the short timescale to the attention of XYZ when serving the order. I was persuaded that this very short timescale was necessary in order to minimise the risk of publication by third parties and maximise the ability of JPH to contain the scope and effect of any such publication, given that the nature of the material is such that it may well be rapidly disseminated on social media once initially posted or disclosed.
12. I also made an order under CPR 81.8 dispensing with personal service of the order and providing that good service be effected by sending it to an email address which there was good reason to believe would bring it swiftly to XYZ's notice. I was satisfied that this was appropriate to meet the risk that if XYZ became aware of the application or the existence of an order before it was possible to effect personal service of the order, XYZ might fail to comply without being amenable to committal proceedings for contempt of court. The difficulty of containing the material if it were initially disseminated by XYZ justified this aspect of the order which is intended to ensure compliance with the order by making committal proceedings an effective sanction.