Case Law: Tulisa Contostavlos v Michael Mendahun and others, “sex tape” privacy injunction continued

1 04 2012

On 19 March 2012, singer and X-factor judge Tulisa Contostavlos obtained an interim injunction to prevent the publication of a “sex tape”. We reported on this application at the time.   Original reports suggested that this might be a “false privacy” case but in a You Tube video the singer explained the background and accused her former boyfriend, Justin Edwards (aka MC Ultra) of leaking the tape (see our post of 22 March 2012). A public hearing took place on 26 March 2012 (see our post of 27 March 2012) and the order was continued by Mr Justice Tugendhat.  On 29 March 2012 he handed down a judgment explaining his reasons for granting and continuing the order ([2012] EWHC 850 (QB)).

Judgment

The First Defendant, Michael Mendahun, is responsible for the website www.rundat.com.  The Second Defendant is defined as “any person in possession or control of the material referred to in Schedule 2 to the Order of 20 March 2012”. The Third Defendant was Justin Edwards, aka MC Ultra, the Claimant’s former boyfriend of the claimant.  He was represented at the hearing and did not oppose the continuation of the injunction [1].

The Judge explains that, in August 2011, a public statement was made on behalf of the Claimant to the effect that the tape was fake in August 2011.  This was because she was not given access to it and did not recall making any such footage [5].  He sets out the history of communications between the Claimant’s solicitors and those acting for the Third Defendant.

The judgment deals with the events of 19 March 2012 when the sex tape was removed from the websit www.pappzd.com but then became available on www.rundat.co.uk and an injunction was applied for.

The hearing on 19 March 2012 was in private and the court was informed that that the claimant had, in August 2011, denied that she was the person who appeared in the video.  The judge made an order until 26 March 2012

“In that order the information of which disclosure was prohibited was: “A film of the Claimant engaged in a sexual act apparently shot on a mobile telephone or any part thereof or stills therefrom”” [14].

The Judge made it clear that statements in the media that the Claimant had told the court that the video on the internet was a fake were incorrect [15]

On 20 March 2012, information was given to the Claimant by the “Sun” that the Third Defendant’s agent had been trying to sell two additional videos and would try to sell them in the US.  As a result, he was served with the injunction ([17]).  An application was made by the Claimant to extend the definition of information cover to “Any film or video of the Claimant engaged in a sexual act or part or stills therefrom” [18]

The Judge then considered the question as to whether the order should be continued. He noted that

“Details of a person’s sexual life have thus been recognised for very many years as high on the list of matters which may be protected by non-disclosure orders. It has also long been recognised that photographs are more intrusive than a verbal or written description. In the case of intrusive and intimate photographs of the kind in question in this case there is no real prospect of a defence of public domain” [25]

The Third Defendant supported the order and no one served had suggested that there was any basis in law for resisting an injunction.  The Judge noted that the steps taken by the Claimant’s solicitors had been so successful that the evidence was that people were making posting on the internet complaining that they could not find the video which was the subject of the order.

Comment

This is an interesting example of the modern practice in relation to privacy injunctions.  As the judge noted, the order was substantially in the form of the “Model Order” in the “Guidance on Non-Disclosure Injunctions“. A public judgment has been given explaining the background.  The injunction appears to have been served on numerous persons posting the video on the internet and to have been successful in preventing further dissemination.

The Judge noted that the case would proceed to trial in the usual way under the CPR.  This will give rise to interesting procedural issues because, although it seems likely that the First and Third Defendants will not oppose the grant of a permanent injunction, there is no procedure for obtaining a permanent injunction against “generally described persons” such as the Second  Defendant.  It appears that the Claimant would have to seek a “contra mundum” order against one of the identified defendants.  This would, itself, give rise to procedural issues as it appears that neither of them are threatening further publication.

Finally, there is an interesting point about the earlier “denials” on behalf of the claimant.  The Judge made it clear that these were never part of the claimant’s case before the court – in other words, contrary to initial reports, the case was never one of “false privacy”.   The confusion was caused by the statement put out in August 2011.   It seems that, by the time of the application the Claimant had seen the tape and realised that it was authentic.

There is an interesting footnote to the case.  On Thursday 29 March 2012 it was reported that the Claimant’s PR firm Hackford Jones has sued the “Fleet Street Blues” blog for libel.   It seems that the blog published an article about PR ethics claimed that the PR firm had recently issued a statement denying she appeared in a sex tape being circulated on the internet. The claim was made in a blog post on the wider subject of PRs lying to the press and Hackford Jones was not directly named.  The Fleet Street Blues blog is presently not available online.


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2 04 2012
Law and Media Round Up – 2 April 2012 « Inforrm's Blog

[…] public hearing in the Tulisa Contostavlos v Michael Mendahun and others case took place last Monday and the order was continued. On 29 March 2012 Tugendhat J handed down a judgment explaining his reasons for granting and […]

9 07 2012
Law and Media Round Up – 9 July 2012 « Inforrm's Blog

[…] On Monday 9 July 2012, Tugendhat J will hear an application in the case of Contostavlos v Mendahun (the “Tulisa” sex tape privacy injunction case, see our post here) […]

12 07 2012
News: Tulisa “Sex Tape” legal action settled, statement in open court « Inforrm's Blog

[…] On 19 March 2012,Ms Contostavlos obtained an interim injunction to prevent the publication of a “sex tape”.  A public hearing took place on 26 March 2012 and the order was continued by Mr Justice Tugendhat who subsquently handed down a judgment ([2012] EWHC 850 (QB)) explaining his reasons for granting and continuing the order (see our Case Comment). […]

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