Full case report

JPH v XYZ (No 1)

Reference [2015] EWHC 2871
Court High Court (Queen's Bench Division)

Judge Popplewell J

Date of Judgment 10 Oct 2015


Summary

Privacy – without notice injunction – “revenge porn” – disclosure order – service by email


Facts

The Claimant JPH was a successful professional actor who had been in a relationship with the Defendant XYZ. During the course of the relationship, a number of photographs and videos were taken which portrayed nudity and sexual activity.  XYZ threatened to post the images on social media and publish them. It appeared that XYZ’s motive was revenge in respect of JPH having ended the relationship.  XYZ also sent an email to a former partner of JPH in which XYZ gave graphic details of alleged sexual activity by JPH and later sent the former partner two explicit videos.   XYZ told JPH that locked files with copies of the images had been lodged with two unidentified friends who would be authorised to cause them to be published should the police become involved.  Shortly before the beginning of the hearing, a small number of the still images appeared on a website; it was a reasonable inference that they had been posted by or at the instigation of XYZ. JPH applied out of hours for (1) an interim injunction restraining publication of the information on a without notice basis; (2) an order requiring JPH to identify the two holders of the material and anyone else to whom the material had been passed and (3) permission to serve the injunction by email.


Issue

  1. whether the Claimant was entitled to anonymity;
  2. whether an injunction should be granted without notice;
  3. whether it was appropriate to grant an order requiring the Defendant to provide information within a very short time period.
  4. whether personal service should be dispensed with.

Held

  1. Applying AMM v HXW (2010) EWHC 2457 (QB), that it was appropriate to grant anonymity because some of the images had been put on a website, and the fact of JPH’s previous relationship with XYZ was in the public domain. There was a risk of jigsaw identification of JPH.  Anonymity of JPH alone would be insufficient to protect against this risk because identification of XYZ might enable identification of JPH to be made.
  2. Granting an injunction, in issue was intimate, graphic and sexually explicit material of a highly sensitive and personal nature. There was no discernible public interest in publication of the images or information. JPH was likely to establish that disclosure and publication should not be allowed. There were compelling reasons for granting the order without notice because XYZ’s conduct justified the belief that if prior notice were given there was a real risk that there would be disclosure  before any hearing.
  3. Ordering XYZ to identify the two alleged holders of files of the material, as well as that of anyone else to whom XYZ had already passed the material within 1 hour of the order coming to XYZ’s attention,   a  very short timescale was necessary in order to minimise the risk of publication by third parties and maximise the ability of JPH to contain the scope and effect of any such publication, given that the nature of the material was such that it may well have been rapidly disseminated on social media once initially posted or disclosed.
  4. It  was appropriate to permit service of the order by email to meet the risk that if XYZ became aware of the application or the existence of an order before it was possible to effect personal service of the order, XYZ might fail to comply without being susceptible to committal proceedings.

Comment

An example of “revenge porn” – namely disclosure of sexual images either to blackmail or humiliate a former partner.  An interesting feature of this case was that the Court was willing to order an extremely short time scale (one hour from the order coming to the attention of the defendant) in which the defendant had to provide information about where and to whom the material had been disclosed.  In cases involving threatened disclosure online,  the potential for extremely rapid dissemination of material via social media means that it essential for an intended victim to act quickly and to be able to identify potential defendants in possession of the material.  A short time frame to provide this information  and permission to serve the order by email so that effective service can be effected quickly are useful to assist in minimising the risk of viral dissemination.