UK High Court issues injunction in revenge porn case: J.P.H v XYZ

October 22, 2015 |

On Saturday 10 October 2015 in J.P.H v X.Y.Z [2015] EWHC 2871 the High Court, Queens Bench Division, per Justice Popplewell granted a non disclosure order restraining the publication of images and information in a revenge porn case.

Facts

JPH is described as a successful professional actor who was in a relationship with XYZ for a number of months. During the relationship there was a number of photographs and videos taken on JPH’s devices portraying nudity and sexual activity.

The critical events were described in paragraph [2] of the decision.  On the afternoon and early evening of Friday 9 October 2015, XYZ threatened JPH that the images would be posted on social media and/or to cause them to be published in magazines.  XYZ’s motive was revenge for JPH ending the relationship to an end and “..it is to be inferred, with a possible view to persuading JPH to resume the relationship.” XYZ emailed  a former partner of JPH wherein it set out raphic details of JPH’s alleged sexual activity whilst in a relationship with XYZ. XYZ followed this up by sending two explicit videos. XYZ advised 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.

On the morning of Saturday 10 October 2015  a small number of the still images appeared on a website which, it was inferred had been posted by or at the instigation of XYZ. By the time of the hearing JPH had succeeded in removing them from the site [3].

The application was made without notice because XYZ’s conduct justified the belief that if prior notice were given there was a real risk that disclosure would occur before the hearing could take place so as to defeat its purpose [4].

Decision

The Court found there is

“..cogent, credible and as yet uncontradicted evidence that the photographs and videos were taken in circumstances where JPH has a strong case for asserting that he had a reasonable expectation of privacy and in circumstances attracting confidentiality.”

As such his rights  under Article 8 of the European Convention on Human Rights was engaged [7]. While his Honour acknowledged the need to balance the right to freedom of expression he was satisfied that the balance comes down firmly in favour of protection of JPH’s Article 8 rights” because the images and information involved:

intimate, graphic and sexually explicit material of a highly sensitive and personal nature

His Honour found that, at [8]:

    the effect of the disclosure would be highly damaging emotionally and financially and that damages would not be an adequate remedy;

  • there was no discernible public interest in publication of the images or information and that the disclosure would contribute anything to a debate of general interest in a democratic society.
  • an argument for protection of XYZ’ s rights of freedom of expression in publishing images which portray XYZ  carries little weight when the threatened publication is motivated by revenge and possibly blackmail.
  • the fact that the limited disclosure made to JPH’s former partner, the two holders of the files and briefly on one website on Saturday morning, is no reason for declining to make the order. The material is not currently in the public domain and the limited distribution has not come close to the stage where there is no longer any privacy interest left to be protected.

If the injunction was not granted the Court the material would likely be widely disseminated and be difficult to contain or withdraw from the public domain [9].

Finally the court ordered:

  • XYZ to provide information to JPH’s solicitors comprising details of any third party to whom the information had already been passed and any internet sites on which it had already been posted. This required identification of the two alleged holders of files of the material, as well as that of anyone else to whom XYZ had already passed the material. XYZ had to provide this information within one hour of the order coming to XYZ’s attention. This was 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[11].
  • dispensing with personal service of the order and providing that good service be effected by sending it to an email address which there was good reason to believe would bring it swiftly to XYZ’s notice. This was 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 amenable to committal proceedings for contempt of court [12]

ISSUE

The UK courts are becoming quite proficient in granting injunctions preventing the dissemination of salacious material.  The media culture is quite aggressive there, not there isn’t a sensational strain in the Australian media.  This decision is both interesting in the analysis of dealing with a threat of revenge porn but also in the fast tracking of service of the orders, by email, and orders requiring the defendant to identify the names of persons who held the incriminating material.  This tracing exercise is critical when the need to locate and secure the material must be done expeditiously.

 

One Response to “UK High Court issues injunction in revenge porn case: J.P.H v XYZ”

  1. UK High Court issues injunction in revenge porn case: J.P.H v XYZ | Australian Law Blogs

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