In the case of GYH v Persons Unknown ([2017] EWHC 3360 (QB)) Warby J granted an interim non-disclosure order to  a sex worker.  The case engages a wide range of significant legal issues including venue jurisdiction, claims against Persons Unknown, the right to privacy despite prior disclosures and the assessment of concurrent actions in defamation and harassment.

Background

The Claimant applied for an interim non-disclosure order to restrain a campaign of harassment by an unidentified defendant pursuant to s.1 and 3 of the Protection from Harassment Act 1997 (“PHA”).  She also made a complaint of defamation.

The conduct complained of originated in December 2015, where the Claimant was contacted via text message by the Defendant in the context of her work as a sex worker. The Defendant claimed to be a student who wished to meet with the Claimant socially. However, when the Claimant refused she received a series of increasingly abusive messages and anonymous phone calls, presumably from the Defendant. This included allegations that the Claimant spread sexually transmitted diseases.

This conduct escalated into an alleged campaign of online harassment, with a series of websites being established using the Claimants’ legal and work name, offensive pictures, videos and personal information including her background, sexuality as well as allegations of mental and sexual illness. Much of the content posted was of an extremely intimate and private nature and had been altered in an offensive manner.

It was also alleged that the Claimant was visited by the Defendant on 6 July 2017 and was accused of sleeping with the Defendants’ father. The Defendant threatened the Claimant, later conducting a call where, in claiming to be a Police officer, he directed her to delete all messages received from him.

Procedural Issues

Warby J dealt with four preliminary issues concerning venue jurisdiction and best practice in cases where a Defendant cannot be identified. Whilst the case had been ordered by a Master to be transferred to a County Court the Claimant remained in ignorance of this due to delay in sealing and service of the order. In applying s.41(1) County Courts Act 1984 and CPR 30.3(2)(b) and (c) Warby J considered it practical that he hear the case in its entirety, particularly given that the Claimant was not at fault and that proceeding as such would be the most efficient use of Court resources.

Secondly, Warby J addressed the fact that the Defendant was currently unidentifiable and therefore, that the Court must ensure the fair dispensation of justice whilst considering the application in his absence (see Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch)). This was related to a subsequent issue, the application of s.12(2)(a) Human Rights Act 1998 (“HRA”) in ensuring that the Claimant had taken all practicable steps to identify the Defendant.

Further, the Claimant sought to serve the requested injunction on third-party platform providers who were facilitating the publication of the material complained of, thereby achieving Spycatcher relief. In extending the remit of the injunction to be granted to apply to specified internet service providers Warby J had regard to the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003. The test was passed narrowly, as it was considered that prior notification to the internet providers’ in the case posed a real risk of causing the conduct complained of to escalate.

Judgment

Warby J noted that the application entailed balancing Article 8 and Article 10 of the Convention in seeking to restrain the free speech of the Defendant to ensure the protection of the reasonable expectation of privacy of the Claimant. This engaged a raft of caselaw, including his recent decision in LJY v Persons Unknown [2017] EWHC 3230.  The Claimant had to prove that she would be more than likely to succeed in obtaining an injunction at trial.

Due to the cause of action being harassment the facts submitted had to be such that they showed persistent, unreasonable and oppressive conduct which was calculated to and caused alarm, fear or distress (Hayes v Willoughby [2013] UKSC 17) sufficient to justify the imposition of criminal liability (Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 at 30).

In concluding that the grant of an interim order was amply justified Warby J noted that the course of conduct complained of was highly invasive and involved information that was extremely sensitive in character.

The judge considered whether the Claimant’s past conduct, in making details of her sexual life public, had forfeited her right to a reasonable expectation of privacy in respect of that same information (Spelman v Express Newspapers [2012] EWHC 355 (QB)). He stated that the mere fact a Claimant has made public information of the same character to which their application relates did not necessarily waive their right to a reasonable expectation of privacy in respect of that information. Significantly, the nature of the information published by the Defendant was entirely different to that which the Claimant themselves made public.

Warby J noted that whilst there were clearly defamatory elements to the claim, the crux of the case was that of a claim for harassment for distress caused by misuse of the Claimant’s private information. The fact that some of the statements complained of may well be false, in fact, supported the case for harassment. The harassment was compounded by the fact that the information at issue in the case was both private and commercial in nature, due to the Claimants dealings as a sex worker.

In finding for the Claimant at interim stage Warby J required the Claimant to provide an undertaking that she would continue to use her best endeavours to identify and serve the Defendant (Kerner v WX [2015] EWHC 128). It should be noted that the order itself was prohibitive in nature rather than mandatory, barring further contact with the Claimant.

Comment

The case was acknowledged by Warby J as “providing a unique mix of factual and legal ingredients”.  Nevertheless, attention can be drawn to three areas of wider interest.

Firstly, this case endorses best practice in instances where the Defendant to a claim cannot be identified, as established by Warby J in LJY v Persons Unknown [2017] EWHC 3230. This includes advancing potential arguments which would have been available to the Defendant and, in the event of a Claimants’ success, the provision of an undertaking to continue to use best efforts to identify the Defendant.

Secondly, the case re-affirms the Court’s nuanced, contextual approach to determining whether a Claimant had a reasonable expectation of privacy in respect of the information at issue. Consideration was given to the nature of the information with prior disclosures made by the Claimant and public interest in disclosure being considered separately.

Finally, the case highlights the relevant considerations for where a claimant seeks to bring concurrent claims in both harassment and defamation (see generally “Interim Injunctions and the overlap between privacy and libel”). The arguments supporting each cause of action may be meritorious however, the Court will take an objective approach to assessing what the “nub” of Claimant’s claim is. Such an approach is highly fact sensitive, discouraging Claimants from “shopping” for a cause of action. As in the instant case, smear campaigns involving the dissemination of private, typically false, information are usually most suitably addressed by a complaint of harassment. This action provides the most adequate remedy- an injunction to prevent the conduct at issue and an award of damages.

Suneet Sharma is a junior legal professional with a particular interest and experience in media law