JPH v XYZ & Ors [2015] EWHC 2871
In JPH v XYZ & Ors [2015] EWHC 2871 (QB) (10 October 2015) the matter was heard before The Hon. Mr Justice Popplewell in the High Court on Saturday, 10th October 2015.Mr Justice Popplewell granted to the Claimant an interim order which restrained the disclosure or publication of information and of images in this case which had been termed as “revenge porn”.
The Claimant, a successful actor, had been involved in a relationship with the Defendant for some months which then ended. The Defendant, in the afternoon and evening of Friday the 9th October 2015, sent a flurry of messages to the Claimant with threats to publish the images on social media and in magazines.
During their relationship, video recordings and photographs were taken on equipment belonging to the Claimant which showed scenes of sexual activity and nudity. The Defendant also contacted a former partner of the Claimant describing in detail alleged sexual activity with the Claimant and sent that person two revealing videos.
The Defendant had also mentioned in communications with the Claimant that files containing the images had been secured and left with friends who had been given instructions to publish them should the Police be contacted. Mr Justice Popplewell explained this was the reason for adding Persons Unknown as Second Defendants.
Mr Justice Popplewell observed that it appeared the Defendant, in making the threats, was seeking revenge as the Claimant ended their relationship and also, probably, in an effort to get back together again.
Mr Justice Popplewell noted that on the morning of the hearing some still images were shown on a website, the inference being that they were posted by or on behalf of the Defendant. However, he observed that by the time the hearing started, the Claimant had been successful in having them removed.
He noted that the application had been made without notice but the circumstances were so compelling and, in accordance with s.12 (2) (b) of the Human Rights Act 1998, if notice had been given, the risk would be, taking into account the way the Defendant had acted, that the disclosure would take place before the hearing thus defeating the main purpose of the order.
Although Mr Justice Popplewell held the hearing in public it did not defeat the purpose of the order as he had:
- Made orders protecting the anonymity of the parties
- The images and information, of which the Claimant was preventing disclosure, were not revealed in the public hearing, he read them in a confidential schedule and viewed some of the images on a mobile phone.
To afford further protection, Mr Justice Popplewell ensured, to prevent access to the material, he issued orders so that, there was a restriction on accessing the Court files under CPR 5.4C and any confidential items be contained in a sealed envelope only accessible by authorisation from a High Court Judge.
He considered the evidence was strong enough for the Claimant to enjoy a reasonable expectation of privacy and an expectation of confidentiality in respect of the videos and photographs thus, under Article 8 European Convention on Human Rights (ECHR), a right for a private and family life.
He further observed that the Article 8 Rights had to be balanced with a person’s freedom of expression under Article 10 of the ECHR. The material was of a highly personal and private nature, very graphic in its content and would be extremely damaging to the Claimant both emotionally and ultimately financially. He did not believe damages would be the remedy and there would be any public interest in the material being published.
He examined the Defendant’s rights of freedom of expression in publishing and disclosing the material in respect of their relationship and considered that this did not carry any weight when the motive of the Defendant had been for revenge and even blackmail.
Mr Justice Popplewell observed that there had been a limited release of the material namely to the former partner, two friends and website on the morning of the hearing but he did not believe there should be any reason for not making the order. He considered that having regard to s.12(3) of the Human Rights Act and as set out in s.12(4) that the Claimant is more than likely able, on the evidence, provided to make a case that the publication and disclosure should not have been allowed.
He introduced two more aspects to the order, requesting the Defendants Solicitors to provide details of what other parties had seen the material and on what sites they had been posted.
Further, Mr Justice Popplewell made an order under CPR 81.8 that good service be effected via email to ensure it came to the Defendant’s notice quickly. He concluded that it
- “is intended to ensure compliance with the order by making committal proceedings an effective sanction”.