AMP V PERSONS UNKNOWN [2011] EWHC 3454
FACTS:-
This was an application for an interim injunction to prevent transmission, storage and indexing of any part of parts of certain photographic images which were claimed to belong to the Claimant.
The Claimant’s mobile phone was stolen whilst she was at University. The phone contained sexual images of the Claimant, as well as other digital images of her family and friends. These images were uploaded onto a free onlilne media hosting service. The Claimant contacted the hosting service and the images were removed in about August 2008. In about July 2008, the Claimant was contacted on Facebook by someone who threatened to expose her identity and post the images online if she did not add him as a friend on Facebook. Another attempt was made to blackmail her using her father’s business public relations team. In November 2008, the images were uploaded to a Swedish website that hosted “BitTorrent” files with the Claimant’s name attached to each.
The claim in this case has been brought against “Persons Unknown.” This was because until those persons who had downloaded the images had been identified by way of their IP Addresses, and their addresses had been obtained from their Internet Service Provider, they could not be made a party to these proceedings. The Claimant submitted that it would be more cost effective and less cumbersome if the class of persons who might have the files in their possession could be identified by a common characteristic, i.e. any person in possession or control of any part of parts of the relevant files containing the relevant digital photographic images.
JUDGEMENT:-
Mr Justice Ramsey said that the Claimant sought relief to preserve the right of respect for her private and family life under Article 8 of the European Convention on Human Rights.
Secondly she sought relief under Section 3 of the Protection from Harassment Act 1997 in the form of an injunction to restrain an actual or expected breach of the terms of that Act.
The test under Article 8 was whether the Claimant had a reasonable expectation of privacy in relation to the digital photographic images. Ramsey J referred to the following cases:-
In this case, the Claimant had a reasonable expectation of privacy for both the images of a sexual nature and those taken of family and friends.
The second consideration was then the balancing of the Article 8 right with the right to freedom of expression under Article 10. Ramsey J referred to the following cases:-
The present case, the rights of the users of the BitTorrent client software to download the digital photographic images and to disseminate them had to be balanced against the rights of the Claimant under Article 8. This was not a case where press freedom was at issue. The balance fell strongly in favour of the Claimant.
In this case, there were compelling reasons as to why the “Persons Unknown” should not be notified at this stage of granting an injunction. The material in this case could not be described as journalistic, literary or artistic material. Interim relief could be granted by way of an injunction.
In relation to the Protection from Harassment claim, Ramsey J quoted from Section of the 1997 Act. The term “harassment” was not defined in the 1997 Act, but section 7(2) stated that it included “alarming the person or causing the person distress.” Ramsey J referred to the following cases:-
On the current evidence, there had been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm and distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and in my judgment would cross the line and be conduct which amounted to harassment, alarm or distress. Therefore this was a case where it was appropriate to grant an injunction.
FACTS:-
This was an application for an interim injunction to prevent transmission, storage and indexing of any part of parts of certain photographic images which were claimed to belong to the Claimant.
The Claimant’s mobile phone was stolen whilst she was at University. The phone contained sexual images of the Claimant, as well as other digital images of her family and friends. These images were uploaded onto a free onlilne media hosting service. The Claimant contacted the hosting service and the images were removed in about August 2008. In about July 2008, the Claimant was contacted on Facebook by someone who threatened to expose her identity and post the images online if she did not add him as a friend on Facebook. Another attempt was made to blackmail her using her father’s business public relations team. In November 2008, the images were uploaded to a Swedish website that hosted “BitTorrent” files with the Claimant’s name attached to each.
The claim in this case has been brought against “Persons Unknown.” This was because until those persons who had downloaded the images had been identified by way of their IP Addresses, and their addresses had been obtained from their Internet Service Provider, they could not be made a party to these proceedings. The Claimant submitted that it would be more cost effective and less cumbersome if the class of persons who might have the files in their possession could be identified by a common characteristic, i.e. any person in possession or control of any part of parts of the relevant files containing the relevant digital photographic images.
JUDGEMENT:-
Mr Justice Ramsey said that the Claimant sought relief to preserve the right of respect for her private and family life under Article 8 of the European Convention on Human Rights.
Secondly she sought relief under Section 3 of the Protection from Harassment Act 1997 in the form of an injunction to restrain an actual or expected breach of the terms of that Act.
The test under Article 8 was whether the Claimant had a reasonable expectation of privacy in relation to the digital photographic images. Ramsey J referred to the following cases:-
- Campbell v MGN Limited [2004] 2 AC 457
- Murray v Express Newspapers Limited [2009] CH 481
In this case, the Claimant had a reasonable expectation of privacy for both the images of a sexual nature and those taken of family and friends.
The second consideration was then the balancing of the Article 8 right with the right to freedom of expression under Article 10. Ramsey J referred to the following cases:-
- Re S (a Child) [2005] 1 AC 593
- Clayton v Clayton [2006] EWCA 878
The present case, the rights of the users of the BitTorrent client software to download the digital photographic images and to disseminate them had to be balanced against the rights of the Claimant under Article 8. This was not a case where press freedom was at issue. The balance fell strongly in favour of the Claimant.
In this case, there were compelling reasons as to why the “Persons Unknown” should not be notified at this stage of granting an injunction. The material in this case could not be described as journalistic, literary or artistic material. Interim relief could be granted by way of an injunction.
In relation to the Protection from Harassment claim, Ramsey J quoted from Section of the 1997 Act. The term “harassment” was not defined in the 1997 Act, but section 7(2) stated that it included “alarming the person or causing the person distress.” Ramsey J referred to the following cases:-
- Thomas v News Group Newspapers Limited and Another [2001] EWCA 1233
- Dowson v Chief Constable of Northumbria Police [2010] EWHC 2621
- S & D Property Investments Limited v Nisbet [2009] EWHC 1726
- Cray v Hancock [2005] All ER (D) 66
- Petros v Chaudhari [2004] All ER (D) 173
- S v Director of Public Prosecutions [2008] 1 WLR 2847
On the current evidence, there had been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm and distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and in my judgment would cross the line and be conduct which amounted to harassment, alarm or distress. Therefore this was a case where it was appropriate to grant an injunction.