BVG v LAR (No 1)

Reference: [2019] EWHC 2388 (QC)

Court: High Court, Queen's Bench Division

Judge: Murray J

Date of judgment: 11 Sep 2019

Summary: Blackmail - Privacy - Misuse of Private Information - Harassment - Interim Injunction- Non-Disclosure Application

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Appearances: Christina Michalos QC (Claimant) 

Instructing Solicitors: Carter-Ruck Solicitors

Facts

The Claimant (C) was a retired businessman and a former public servant, but not a public figure. C first met the Defendant (D) in the 1990s. D provided C with specialised male escorting services known as bondage, discipline and sado-masochism (‘BDSM’) irregularly over several years. Their contact broke in the mid-2000s. D contacted C out of the blue and they began to communicate again. D then told C that one of their BDSM sessions had been secretly filmed without C’s knowledge.

C instructed solicitors (not the firm presently instructed in these proceedings) who drew up undertakings for D to make in exchange for two payments made by C to a company established by D. D undertook not to request further payment from C and to deliver up the video footage.

D later made it clear to C that he had retained copies of the video footage. A pattern developed over the next few years where D would periodically contact C requesting money and making statements which C contended were veiled threats to expose C publicly. These veiled threats lead to contractual undertakings given by D to C on two further occassions in each case for a substantial payment of money. C submitted he was being blackmailed and harassed by D; D denied blackmailing C.

C applied for an interim injunction on the basis of breach of confidence, misuse of private information and harassment by blackmail.

Issue

  1. Whether C had a reasonable expectation of privacy in the information under Article 8 of the European Convention on Human Rights (ECHR).
  2. Whether D had any countervailing rights that outweighed any Article 8 rights of C.
  3. Whether C was likely to establish at trial that publication should not be allowed: s.12(3) Human Rights Act 1998.

Held

Granting an interim injunction:

  1. C clearly had a reasonable expectation of privacy in relation to his sexual behaviour and the clandestinely recorded video footage of a BDSM in which he was involved. C’s right to a private and family life under Article 8 ECHR was engaged.
  2. Following the observations of Lord Mance in PJS v News Group Newspapers Ltd [2016] UKSC 26  at [24] that it was doubtful that the mere reporting of sexual activity of  celebrities would even fall within Article 10, that argument was even stronger where  (as in the present case) the claimant is a private individual who is not a public figure. The Court had no hesitation in concluding that the C’s Article 8 rights would far outweigh any Article 10 rights which the D could claim.
  3. The prima facie evidence that D was blackmailing C made the case for an injunction overwhelming. Although D indicated that he intended to contest the allegation of blackmail at trial, the Court was satisfied that there was a strong prima facie case D was blackmailing C which amounted to harassment.

Comment

This decision strengthens the position of claimants in privacy claims regarding sexual information or kiss-and-tell cases where the defendant seeks to rely on their own right to freedom of expression to tell their side of the story.  In PJS v Newsgroup Newspapers Ltd  Lord Mance had expressed doubt as to whether details of sexual encounters could ever engage Article 10 saying at [24]:

“In these circumstances, it may be that the mere reporting of sexual encounters of someone like the appellant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under article 10 at all.”

Murray J accepted the submission that it was even less likely that the sexual encounters of a non-celebrity/private individual would engage Article 10 saying at [22] iii):

“Lord Mance doubted in PJS  (PJS  v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081) whether the mere reporting of sexual encounters of someone, however well known to the public, would even fall within the freedom of expression under Article 10: PJS at [24]. The PJS case concerned celebrities. Where, as in this case, the claimant is a private individual, who is not a public figure, the argument is even stronger that information about his private sexual activities does not engage Article 10.”

ADDENDUM: A final injunction was granted in this case on 21st April 2020 by Nicol J following a successful application for summary judgment and to strike out the defence: BVG v LAR (No 2) [2020] EWHC 931 (QB)