Poi v "Lina"

Anonymity and privacy orders require a careful balance between open justice, freedom of expression and the applicant’s rights to private and family life. An anonymity order is a derogation from open justice and must be reviewed at the return date. Where private images were taken without consent and there was a strong basis for alleging attempted blackmail, the applicant’s Article 8 rights carried substantial weight and the respondent’s Article 10 claim was weak. The court may continue an injunction and order a private hearing where anonymity is necessary in the interests of justice and disclosure of the applicant’s identity could defeat the law’s protection of alleged victims of blackmail.

The claimant sought continuation of an injunction restraining publication of private photographs, video and related information, together with anonymity and related orders. The injunction had been granted by Tugendhat J on 12 January 2011 and served on the respondent, who was subsequently served with the claim form and notice of the return hearing but did not appear or respond. The central issues were whether the anonymity order should continue, whether publication should remain restrained, and whether the application should be heard in private.

1. The court continued the injunction and related orders until trial or further order. It also continued the anonymity order and ordered that the hearing take place in private.
2. Anonymity is exceptional. The general rule is that parties’ names should appear in court orders and judgments. An anonymity order derogates from open justice and interferes with the Article 10 rights of the public. An order made at the first hearing must be reviewed at the return date. The court applied the principles identified in JIH v News Group Newspapers Ltd, [2010] EWHC 2818 (QB).
3. The photographs and video were taken in circumstances giving the claimant a strong basis for asserting a reasonable expectation of privacy. The evidence indicated that no permission had been sought or given for taking or publishing the images, and there was a strong basis for submitting that the respondent was attempting to blackmail the claimant.
4. Under Human Rights Act 1998, s 12(3), the claimant was likely to establish that publication should not be allowed. The court had regard to s 12(4). There was no real likelihood that the respondent could advance a public-interest justification for publication.
5. The claimant’s Article 8 rights were strongly engaged. The respondent’s Article 10 rights were weak, particularly in the context of alleged blackmail. The balance therefore favoured protection of the claimant’s privacy and family life, and interference with those rights was strongly arguable not to be justified under Article 8(2).
6. The court also applied the relevant observations in AMM v HXW, [2010] EWHC 2457 (QB): threats to disclose information do not automatically extinguish Article 10 rights, but they are relevant to the existence and weight of those rights. The public interest in preventing and punishing blackmail strongly supported anonymity.
7. Anonymity was necessary in the interests of justice because identifying the claimant could enable private information about the images or their circumstances to be deduced from material already in the public domain. The hearing was accordingly held in private under CPR 39.2(3)(a) and (c).

Not stated in the judgment.