In the case of POI v The Person Known as “Lina” ( EWHC 12 (QB)) Mr Justice Tugendhat granted a privacy injunction restraining the publication of photographs and, since there was sufficient evidence of blackmail, he has anonymised the claimant. In accordance with the ground breaking decision in DFT he also ordered that publication of any information as to the subject matter of the proceedings or the identity of the claimant should be limited to that contained in his public judgment. On 12 January 2011 he granted an injunction to restrain publication of private information, and other related orders. The judgment is short and the relevant parts are reproduced below.
The judge identified the information restrained and his reason for accepting that this was private:
1. The information the subject of the order was identified in the order as follows:”(a) Any information concerning the subject matter of these proceedings or any information identifying or tending to identify the Applicant save for that contained in this Order and in any public judgment of the court given in this action.
2. (b) All or any of the private photographs (“the Photographs”) or video (“the Video”) of the Applicant or any information as to their contents or the circumstances in which they were taken, as more particularly described in Confidential Schedule A at the end of this Order (“the Confidential Information”); and
…. PROVIDED THAT nothing in this paragraph of this Order shall prevent the Respondent from publishing, communicating or disclosing any material that before service of this Order was already in, or that thereafter comes into, the public domain as the result of national media publication (other than as a result of breach of this Order or a breach of confidence or privacy)”
The Photographs and/or the Video were taken in circumstances where the Applicant has a strong basis for submitting that he has a reasonable expectation of privacy. The evidence of the Applicant is that no permission was sought or given either for the taking of the images or the publication of them.
No notice was given in advance to the Respondent, and the Respondent was not present or represented. The Judge held that in these circumstances, in accordance with the Human Rights Act 1998 s12(2)(b) there were compelling reasons why the Respondent should not be notified. “There was a real risk that such notification would have resulted in the publication which these proceedings have been brought to prevent.”
Likelihood of Success
The Judge undertook the balancing exercise/parallel analysis in accordance with Re S, McKennitt v Ash, Lord Browne v Associated etc.
“6. On the information before me there is no real likelihood of the Respondent being able to succeed in, or even to advance, an argument that it is or would be in the public interest for the material to be published. There is a strong argument that the Art 8 rights of the Applicant are engaged, and the argument in support of any rights of the Respondent under Art 10 are very weak.At the present stage of the proceedings the balance falls to be struck in favour of protection of the Art 8 rights of the Applicant. But this question will be open to review both at the return date, and at any trial. “
In relation to anonymity the judges reasons were as follows.
“7. I made an order for anonymity on the ground that that is strictly necessary in the interests of justice. In other circumstances I would not have expected to make an order for anonymity, where the form of the injunction identifies (as my order does) the nature of the private information as being photographic images, and where the evidence is that they were taken without consent in private.However, the circumstances of this case require an order for anonymity.
8. The evidence of attempted blackmail includes evidence that there is some information about the case that has been put in the public domain. If the name of the Applicant were to be identified, then it is likely that persons who knew, or learnt, both that the Applicant had issued these proceedings and what is already in the public domain would be able to deduce information about the contents of the images, or the circumstances in which they were taken, which is private information, and which the Applicant is likely to establish should not be published. It is likely that the policy of the law to protect those alleging they are victims of a blackmailer would be defeated.
9. The relevant case law is set out in AMM v HXW  EWHC 2457 (QB). It is not necessary to repeat it in this judgment.”
The Judge relied on what might be called the “blackmail exception” to justify anonymity, but somewhat surprisingly said, obiter, that that anonymity should not normally be granted where there is restraint on the publication of photographs.
The Judge’s approach to anonymity (and that expounded in the Gray and JIH cases) should be contrasted with that of Sharp J in the XJA case last month and that of Eady J in his recently published judgment CDE v MGN plc ( EWHC 3308 (QB)) where, after a contested inter partes hearing and numerous submissions , he gave a detailed explanation of his decision to grant anonymity in a non-blackmail case (see  to ). There is a discussion of this case on the RPC Privacy Blog and we will consider it in a later post.