Full case report

JPH v XYZ (No 2)

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

Judge Blake J

Date of Judgment 16 Oct 2015


Summary

Privacy – injunction –  revenge porn –  anonymity – Article 8 ECHR – Article 10 ECHR – unless order – debarring order


Facts

This was the return date hearing of an injunction granted without notice in a revenge porn case: see judgment JPH v XYZ (No 1). The Claimant was a successful professional actor who had been in a relationship with the Defendant X. During the course of the relationship, a number of photographs and videos were taken which portrayed nudity and sexual activity.  X threatened to post the images on social media and publish them.   X 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.  An injunction was granted prohibiting publication for a short period until the return date. X had also been ordered to identify the two alleged holders of files of the material, as well as that of anyone else to whom X had already passed the material within 1 hour of the order coming to X’s attention and thereafter to confirm that by witness statement.


Issue

  1. Whether the injunction preventing restraint of publication should be continued to trial or further order.
  2. Whether the identity of J should continue to be withheld in the interests of justice pursuant to CPR 39.4.
  3. Whether the court should grant an unless order against the Defendant in respect of the failure to file a witness statement.

Held

  1. Extending the injunction to trial or further order, there was no public interest in publishing such images, and every public interest in preventing publication. If publication were to be seen as part of a course of conduct intimated in the email traffic that preceded the application, publication by X would mostly probably be a crime.
  2. Following JIH v News Group [2011] EWCA Civ 42 , that the judge on the return date must reconsider the issue of anonymity for himself.
  3. Finding that the anonymity orders should remain in place, that  (i) It may be that the public interest in protecting victims of blackmail and victims of revenge publication of sexual images are similar. (ii) there was a high risk of jigsaw identification of J;  (iii) the risk was enhanced by the fact that X said the material had been provided to others and X has not complied with the obligation to identify those people in a witness statement and (iv) an aspect of private life that is subject to protection is the fact that
    photographs and videos were taken with a sexual content in the course of a private relationship.
  4. X having failed to comply with the obligation to make a statement revealing the detail of who has copies of the material, it was ordered that the sanction of being debarred from defending the claim should apply unless X complies with that outstanding obligation.

Comment

The Court accepted that the mere fact that an individual had consented to being filmed and photographed during the course of sexual activity was part of their private life. This weighed in the scales in favour of anonymity being granted to the Claimant. The Court also noted that publication would probably be a crime. It has always been the case that revenge porn may amount to a criminal offence under the Protection From Harassment Act 1997. However,  since 13th April 2015 it has been a criminal offence in its own right by virtue of s. 33 of the Criminal Justice and Courts Act 2015. This provides that disclosing private sexual photographs and films with intent to cause distress is punishable on indictment to a term of imprisonment of up to 2 years and a fine or both.


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