On 15 August 2023 Collins Rice J handed down judgment in LCG v OVD  EWHC 2058 (KB). This note does not set out to analyse in detail the complex factual matrix set out in the lengthy judgment, but seeks to address the key practical takeaways from the case on (i) procedural issues (ii) evidential issues (iii) application of privacy law in a social media context, and (iv) the status of the law on harassment.
The Claimants alleged that the Defendants had blackmailed them into a poor commercial decision using improperly obtained private Instagram pictures of a young woman. The young woman to whom the pictures belonged (the First Claimant, “C1”) is the daughter of the Second Claimant (“C2”) who alleged he had been the victim of the blackmail. C2 is a successful businessman with a national profile. He is also a practising Muslim with conservative values that conflict with the contents of the Instagram pictures in question. The Defendants are C2’s cousins and ex-business partners.
Ultimately, the claims for duress and harassment failed but the claim for misuse of private information succeeded in respect of one publication of C1’s Instagram pictures.
This was a drawn-out claim which saw limited engagement from the Defendants initially and several eleventh hour amendments sought by the Claimants.
The Defendants did not appear and were not represented at an interim hearing on 5 October 2022 and they failed to respond to a Part 18 request. Collins Rice J made an ‘unless’ order on 20 October 2022 with which the Defendants eventually complied.
At the exchange of evidence on 13 December 2022, the Claimants replaced all of the Witness Statements they had originally filed with new statements, and some of the accounts substantially differed. The run-up to the PTR on 31 March 2023 was described by one of the parties’ Counsel, without contradiction, as “chaos” – one set of highly relevant chatlogs was disclosed by the Claimants one day before the hearing. The Claimants then disclosed further key details just three days before the first day of trial on 22 May 2023.
Collins Rice J stated that “it is both parties’ task to undertake disciplined efforts to think about, and check carefully, all the information they have which may be relevant to the claim as pleaded, to account for it all to each other, and exchange their evidence about it, “in good time.”  The Judge described the litigation history of this case as “an object lesson in the importance of [the rules of court].”  In what will no doubt become an often-repeated quote in party/party correspondence: “Civil litigation is conducted on a cards-on-the-table basis. Surprises are distracting from everyone’s task, and potentially unfair.”  This case demonstrates the real negative outcomes of failures to properly adhere to the litigation process.
The problems of accuracy and detail that produced these procedural issues also caused evidential difficulties.
Confusion arose because each set of photos submitted to the court included at least one image which conflicted with the young woman claimant (C1)’s narrative. One relevant selfie was not taken from C1’s private Instagram but from a public Instagram account belonging to her sister, which had since been deleted. C1 failed to exhibit a key picture which the Judge held could not have been obtained by the Defendants by the time of the blackmail because it was a picture of an event that occurred after that date. Further, C1 accepted in her oral evidence that she had two Instagram accounts at the time of the relevant incidents – but that she had forgotten this or thought it was irrelevant. Adding more ambiguity, it emerged that the Instagram accounts repeatedly changed names over time and some of these changes did not accord with the Claimants’ evidence. Crucially, C1 acknowledged that she had multiple social media accounts across various platforms and “accepted that sometimes her other accounts were set to private but not always.” 
Consequently, Collins Rice J concluded “this context, and the problems already noted over accuracy and detail of Ms C1’s recollections of her Instagram account – or rather accounts – and their privacy settings substantially limit the weight I can place on her evidence in this regard.” 
The judgment highlights the disadvantages of problematic evidence: “a changing story, particularly one that evolves in response to the disclosure of documentary evidence, inevitably raises issues about the credibility of a claimant and the reliability of their memory and the evidence they give from it.” 
Social media and privacy
One part of C1’s claim for misuse of private information was successful despite the procedural and evidential challenges outlined above. The judgment is distinctive for its application of privacy law to the subtleties of use of social media by young people. Collins Rice J, summarising the legal framework for the misuse of private information claim, emphasised the Murray factors necessary to establishing a reasonable expectation of privacy: “in a case such as the present, relevant factors…include the contents of the pictures, the circumstances in which they were created and held, and how and why any claimant had and asserted an entitlement to prevent or control their accessibility”.  In the conclusions on liability, Collins Rice J applied this as follows.
- A reasonable expectation of privacy is not an absolute expectation
- C1’s particular interests as a young woman of a particular religious and family background were taken into account
- The protections afforded by Article 8 ECHR are capable of including material which relates to the development of personal, relationship and social autonomy in a university environment.
- Those protections also cover the freedom to develop that within in a circle of one’s own choosing
- In order for those protections to apply, material must be published in a private space where recipients understand the importance of that privacy for the relevant individual
In finding a breach of privacy, the Judge cited the Court of Appeal’s decision in Stoute & Stoute v. News Group Newspapers  EWCA Civ 253 which held that “the case law recognises that photographs require special consideration” because they are particularly vulnerable to voyeuristic misuse. Given the diverging cultural expectations of C1 and her father C2, the disclosure of the images – even within a family circle – constituted a prima facie breach of privacy, and did not extinguish their private quality.
A final point of interest from a privacy point of view is the question this judgment raises about how far a Claimant should go to protect their privacy. At one stage, it is noted that “[C1] took positive steps to brief her followers and her friends of her especial need for and expectations of privacy”.  The case demonstrates that proactively explaining the importance of privacy over images or information can help to establish a reasonable expectation of privacy.
As the harassment claim was dismissed it is sufficient simply to highlight the useful summary of the status of the law on harassment set out in the judgment.
The Judge applied Hayden v Dickinson  EWHC 3291 (QB) and the characterisation of the tort as “a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress”: this objective test is set out in s.1(2) Protection from Harassment Act 1997. This judgment shows a very practical application of those principles to each of the alleged incidents of harassment, with various incidents being found either not to be oppressive, not to be targeted at C2, or not in fact calculated to cause the harm alleged. Certain of the alleged incidents were not found to be attributable to the Defendants.
There are a number of practical learnings from this case. Procedurally, a failure properly to adhere to the CPR can risk jeopardising the credibility of either party and the fairness of the litigation process. Evidentially, inaccuracies or ambiguities in evidence can substantially undermine a breach of privacy or harassment claim. “A claim in misuse of private information has to specify the information in question. A claim in harassment has to particularise a course of conduct” . In relation to establishing a reasonable expectation of privacy, Article 8 ECHR can be engaged by a young person developing their social autonomy online providing any material is published in a private environment to people who understand, and perhaps are even proactively briefed, on the need for privacy. To make out a harassment claim, it is not sufficient to “envelop the Defendants in a cloud of general suspicion”  to prove harassment – the requirements of Hayden v Dickinson apply.
Persephone Bridgman Baker is a partner and Catriona Grew a paralegal at Carter Ruck