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Actor wins privacy injunction for 'revenge porn'

'JPH' v 'XYZ' and Persons Unknown [2015] EWHC 2871 (QB)Mr Justice Popplewell has granted an urgent interim injunction brought by a well-known actor to restrain the publication of several photographs 'JPH' v 'XYZ' and Persons Unknown [2015] EWHC 2871 (QB)

Mr Justice Popplewell has granted an urgent interim injunction brought by a well-known actor to restrain the publication of several photographs and videos depicting nudity and sexual activity which their former partner had threatened to disclose.

This was a straightforward privacy injunction given that sexual activity clearly falls within the scope of Article 8 of the European Convention of Human Rights. The case is of particular interest given that 'revenge porn' is now a criminal offence under the Criminal Justice and Courts Act 2015.

Background

The Claimant (whose name was anonymised as 'JPH') was in a relationship with the Defendant ('XYZ') for several months. When the Claimant brought the relationship to an end, the Defendant threatened to publish several photographs and videos taken of the Claimant which depicted nudity and sexual activity. On Friday 9 October, the Defendant sent two videos to a former partner of the Claimant and stated to the Claimant that copies of the videos and images had been lodged with two friends who would cause them to be published if the police became involved. The Claimant immediately filed for a without noice interim injunction against both XYZ and Persons Unknown (owing to the unidentified 'friends' of XYZ). The injunction hearing was heard the following day on Saturday 10 October.

Judgment

Popplewell J was quick to conclude that the images and videos clearly imparted a reasonable expectation of privacy under the ECHR as they contained material of a "highly sensitive and personal nature". It is a clearly established principle that sexual activity falls within the scope of Article 8 (this has been so in ECHR jurisprudence for a significant time, for example Dudgeon v UK (1981)).

Whilst the Claimant's Article 8 rights needed to be balanced with the Defendant's Article 10 rights to freedom of expression, the judge held that there was no discernible public interest in the publication of the images or information. The information was of a lawful and private nature and disclosure would not contribute to a debate of public interest. This finding was amplified by the fact that the publication had been motivated by revenge, and possibly also blackmail.

Popplewell J granted an order restraining publication against XYZ and also ordered XYZ to disclose the names of the two 'friends' and anyone else who held the material. Service was permitted by email so as to allow the order to be brought quickly and effectively to the attention of any third party and to maximise the Claimant's ability to contain the scope of any disclosure given how quickly such material could become 'viral'.

Comment

Given the material at issue, Popplewell J's decision was in no way surprising. The Court is also well alive to the dangers of material 'going viral' if sufficient provisions are not put in place for quick and effective service of an injunction. Such provisions include making the injunction against 'Persons Unknown' as well as permitting service by email. This follows several previous cases, notably AMP v Persons Unknown which concerned the upload of nude photos to a file-sharing network.

Although this was outside the scope of the judgment and therefore not mentioned, it is now a criminal offence under s.33 of the Criminal Justice and Courts Act 2015 to "disclose private sexual photographs and films with intent to cause distress" (see our article on this new offence here). It is not known whether the Claimant in this case reported the Defendant to the police in respect of s.33, but it would have been open for them to do so. Section 33 provides a Claimant with an additional tactical option when faced with the threat of publication of 'revenge porn'. In many circumstances, the threat of publication of sexual images and videos will be an impulsive decision taken by a former partner as a result of emotional distress (perhaps because the relationship has been brought to an end, as appears to be the case with XYZ). In such a scenario, the threat of criminal proceedings may be enough to bring the individual threatening to publish the private material to their senses.

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