Reference:  EWHC 850 (QB)
Court: High Court, Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 30 Mar 2012
Summary: Interim Injunction - Privacy - Video footage - Internet
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Desmond Browne CBE QC - Leading Counsel (Claimant)
Jacob Dean (Claimant)
Instructing Solicitors: Lewis Silkin LLP for the Claimant, Bark & Co for the Third Defendant, the First and Second Defendants did not appear and were not represented.
Footage of the Claimant involved in sexual activity with the Third Defendant, who was the Claimant’s former boyfriend, had become available on the internet, including on a website operated by the First Defendant. The Claimant had been informed some months previously of an attempt to sell footage of her engaged in sexual activity, but had not been shown or given any details of the footage. She did not remember any such footage having been taken. Her PR advisor had therefore made a statement at that time saying that any such footage was fake. Having seen the footage once it appeared on the internet the Claimant accepted that it was of her. She posted a youtube video confirming that it was her in the footage, speaking of her severe distress at its publication and accusing the Third Defendant of responsibility for its publication. The Claimant sought an injunction to prevent this or any further footage of her engaged in sexual activity being disclosed. Interim orders were made on 19 and 20 March 2012. At the return date on 26 March 2012 the Claimant sought the continuation of the Order. The Third Defendant denied responsibility for the footage having been made public and supported the application.
Should the court continue until trial the injunction preventing disclosure of footage and any stills of footage of the Claimant engaged in sexual activity.
The injunction should be continued until trial or further order.
None of those served with the Order had suggested there was any basis in law for resisting its continuation. The Third Defendant supported the making of the Order.
Given the particularly personal and intrusive nature of the private information in question there should be no public domain proviso, because “it has long been recognised that photographs are more intrusive that a verbal or written description. In the case of intrusive and intimate photographs of the kind in question in this case there is no real prospect of a defence of public domain” .
The order should provide for certain limits on access to the case documents and protection of the hearing papers.
The judge briefly traced the law on privacy and the granting of injunctions, highlighting the especially intrusive nature of photographs and video footage. Given the particularly personal nature of the footage and the lack of opposition to an injunction there was a clear case for continuing the order.
In line with the principles of open justice Tugendhat J gave a public judgment outlining his reasons for granting the interim applications at the hearings in private on 19 and 20 March 2012 and for continuing the order on the return date. The judge also, whilst making it clear that he was making no findings of fact, set out the positions of the Claimant and the Third Defendant (the only parties who were represented and had filed evidence); a practice discussed in Giggs v NGN. In outlining the background as set out by the Claimant, the judge addressed the Claimant’s previous public position that any such footage was fake and her stated reasons for this. He also made clear that statements in the media to the effect that the Claimant had told the court that the video was fake were untrue.