Misuse of private information online

This is often of particular concern to young people (and their parents), as the unwanted dissemination of private information, including private photographs and videos online, has been exacerbated by the ever-increasing use of social media platforms such as Instagram and Snapchat.

It is no surprise therefore that the issue of misuse of private information has been brought to the fore in some recent, high profile, instances. Recent court guidance sets out what can be done to prevent publication of such sensitive material.

How can I prevent the misuse of private information including photographs and videos?

Misuse of private information can be prevented by making an application to the court for an injunction. An injunction would prevent the other person from publishing the material. There is a need to move quickly and any delay can be fatal to the making of a claim.

The Courts apply the following two stages in determining such cases:

• The Claimant must establish that they have a reasonable expectation of privacy in respect of the information which is at risk of being disclosed; and
• If the above is established, the Court moves on to consider the balance between the right to private and family life as against the competing right of freedom of expression (Articles 8 and 10 of the ECHR).

In many cases what constitutes ‘private’ information is not a straightforward concept and as a result the courts have recently looked at this question in some detail.

HRH The Duchess of Sussex v Associated Newspapers Limited [2021] EWHC 273 (Ch)

A good example of the Courts’ approach to the misuse of private information is Meghan Markle’s recent dispute with Associated Newspapers Limited relating to a letter which she sent to her father three months after her wedding to Prince Harry. Reproduction of large segments of this letter were published by the Defendant in the Mail on Sunday and the MailOnline. The claim was therefore not for an injunction because the material had already been published but was a claim for damages.

The court applied the same two-stage test as summarised above, concluding that “at the time of its publication, the claimant [Meghan Markle] had a reasonable expectation of privacy in respect of the contents of the Letter” and “this being the case, and applying the requisite balancing exercise, the defendant has failed to discharge the burden which rests upon it to advance a viable justification for interfering with that right [under Article 8].”

The same test is applied when the Court is considering the threatened disclosure of private material. In this case the court felt so strongly that the material in question was private that it struck out the Mail’s defence to the claim.

What can I do if  a former partner or spouse threatens to publish intimate details of our relationship?

In COS v PER and another [2021] EWHC 475 (QB), the Second Defendant had disclosed facts about a sexual relationship the Claimant had been in with the First Defendant and was threatening to disclose further intimate details. The Claimant therefore sought an interim injunction (as an urgent, temporary, remedy, pending a full trial) in order to restrain the Defendants by ordering them to remove a video which had been posted on the internet, and prevent them from publishing private information about the Claimant.

Stage 1 – Establishing a reasonable expectation of privacy

The Claimant submitted that she did not give permission for details of her relationship to be disclosed, and neither did either Defendant seek permission from her. The details and information in question included photographs of the Claimant, private communications between the Claimant and the first Defendant and information likely lead to the identification of the Claimant. It was held that this was “a classic instance of information in respect of which there is a reasonable expectation of privacy”. The Claimant therefore had a reasonable expectation of privacy.

Stage 2 – Balancing Article 8 and Article 10

Neither Article takes precedence over the other and the Court is required to consider the comparative importance of the two rights and also account for the justification of potentially interfering with each right. Justification is often easier when it relates to matters of public interest and there was no suggestion in this case that there was any public interest in the information being published. However, the Defendants’ rights arising under Article 8 including “the right of the Defendant to speak to others about their own life” were also considered.

On balance the court felt that it was appropriate to grant the injunction. It is important to note that in such cases the names of the parties can be anonymised so that the details do not creep out in the reporting of the case. In this recent case the information in question was clearly of a private nature. Given the imminent threat of publication, the Court was prepared to grant an injunction to protect the Claimant’s privacy without even hearing from the Defendants.  This was due to the risk that such notification would have resulted in the publication of the information which the application was seeking to prevent.

Conclusion

The factual circumstances in COS v PER are akin to the concept of “revenge porn”. This is particularly topical with the airing of a recent BBC documentary by Zara McDermott, known for her participation in series 4 of the programme Love Island on this high-profile issue. The documentary discusses the concept as a whole, but also her own experiences of intimate photographs taken of her, whilst aged 14, which were circulated around her school and which had consequences for her mental health The male who circulated the photographs did not face any (legal or other) consequences.

Revenge porn can be a criminal act, but ultimately by that stage there has been publication of the material. What is important to note is that civil action can also be taken to stop the unwanted disclosure of personal materials, such as intimate photographs, by way of injunction.

In order to obtain an injunction a Claimant  has to satisfy the Court that they would be likely to succeed at trial that the publication of the information in question should not be allowed. “Likely” in this context generally means “more likely than not”.

With the stories we see in the press about private information being shared and the dangers of sharing intimate information via social media we believe that going forward many more people may use their legal options to stop this kind of material being made public.

The Commercial Litigation team at Ward Hadaway has significant experience in obtaining injunctive relief on an interim and final basis in a number of circumstances, including to prevent the misuse of private information.

For further information, please get in touch.