AMP v Persons Unknown

An interim injunction may restrain the dissemination of private digital images where the claimant has a reasonable expectation of privacy and is likely to establish at trial that publication should not be allowed. Articles 8 and 10 require an intense, fact-sensitive balancing exercise; neither right has precedence. The flexible threshold in section 12(3) of the Human Rights Act 1998 generally requires prospects of success greater than mere arguability, subject to the circumstances. Relief may be granted against persons unknown identified by a sufficiently precise characteristic where delay in identifying them would defeat effective protection. Dissemination of private images can also constitute harassment where the statutory requirements of repeated, targeted, objectively oppressive conduct are met.

The claimant sought interim relief against Persons Unknown to prevent the transmission, storage and indexing of intimate and other personal photographs taken from a lost or stolen mobile phone. The files had been uploaded and disseminated using BitTorrent, whose users could act as successive seeders. The claimant relied on Article 8 of the Convention and sections 3 and 1 of the Protection from Harassment Act 1997. The court also considered anonymity, service and the statutory safeguards governing interim relief affecting freedom of expression. The central issues were whether privacy was engaged, whether the balance favoured restraint, whether the section 12 threshold was met, and whether the defendants could properly be described as persons unknown.

1. The application was granted. An interim injunction was appropriate against persons unknown comprising persons in possession or control of any part of the identified files who were served with the order.
2. The claimant had a strong reasonable expectation of privacy in the photographs. The assessment required consideration of all the circumstances, including the nature and purpose of the intrusion, absence of consent and its effect on the claimant. Article 8 was therefore engaged.
3. Articles 8 and 10 required parallel analysis and presumptive parity. The court had to focus intensely on the comparative importance of the specific rights and apply proportionality to each. On the facts, the privacy rights of the claimant strongly outweighed the interests of unidentified users in receiving and disseminating the images.
4. Section 12(2) of the Human Rights Act 1998 did not prevent relief without prior notification because there were compelling reasons not to notify each unidentified defendant. Section 12(4) did not apply because the material was not journalistic, literary or artistic. Under section 12(3), the claimant was likely to establish at trial that publication should not be allowed. The statutory threshold is flexible, although the usual approach requires prospects of success more favourable than mere possibility.
5. There was a good arguable case under section 3 of the Protection from Harassment Act 1997. The dissemination involved conduct on at least two occasions, targeted at the claimant, objectively calculated to cause alarm or distress, and objectively oppressive and unacceptable.
6. Anonymity was necessary to protect the claimant’s interests. The injunction restrained seeding, uploading or transmitting the files, creating derivatives, and disclosing information that might identify the claimant or the files. Relief was granted on the claimant’s cross-undertaking as to damages.