JPH v XYZ & Ors

An interim non-disclosure order may be granted where intimate personal material engages a claimant’s reasonable expectation of privacy and confidentiality, and the evidence shows that disclosure is likely to cause serious emotional or financial harm for which damages would be inadequate. The court must balance Article 8 privacy rights against Article 10 freedom of expression, having regard to Human Rights Act 1998, section 12. Private and lawful conduct, absent any discernible public interest, will generally attract strong protection. Limited prior disclosure does not necessarily extinguish the privacy interest. Ancillary orders may be made to identify recipients, restrict access to confidential court material, and facilitate rapid service and enforcement.

The claimant, an actor anonymised as JPH, applied without notice for an interim order against a former partner, XYZ, and persons unknown. During and after the relationship, intimate photographs and videos had been created on devices belonging to JPH. Following the end of the relationship, XYZ threatened to publish them online and in magazines, and some material appeared briefly on a website.

The central issues were whether the evidence justified a without-notice hearing, whether JPH was likely to establish that disclosure should not be allowed under section 12 of the Human Rights Act 1998, and what protective and enforcement orders were necessary.

1. Interim relief granted. The court granted an interim non-disclosure order restraining disclosure and publication of the images and information.
2. Without-notice application. The application was properly heard without notice under section 12(2)(b) of the Human Rights Act 1998. XYZ’s conduct created a real risk that notice would lead to publication before the hearing and defeat its purpose.
3. Privacy and confidentiality. The evidence was cogent, credible and uncontradicted. It established a strong case that the material had been created in circumstances giving JPH a reasonable expectation of privacy and attracting confidentiality. This engaged Article 8 of the European Convention on Human Rights. The anonymity principles in AMM v HXW (2010) EWHC 2457 (QB) applied. Anonymising JPH alone would not sufficiently protect the privacy interest because identification of XYZ could lead to identification of JPH.
4. Article 8 and Article 10 balance. The intimate, graphic and sexually explicit nature of the material, the likely emotional and financial damage, and the inadequacy of damages weighed strongly in favour of protection. There was no discernible public interest in publishing material concerning private and lawful behaviour. The countervailing Article 10 claim carried little weight where publication was apparently motivated by revenge and possibly blackmail. The limited distribution already made did not remove the remaining privacy interest.
5. Statutory threshold and practical protection. Applying sections 12(3) and 12(4) of the Human Rights Act 1998, JPH was likely to establish that disclosure and publication should not be allowed. The risk of rapid and irreversible dissemination justified orders requiring XYZ to identify recipients and websites within one hour, restricting access to confidential court material under CPR 5.4C, and dispensing with personal service under CPR 81.8 so that email service would provide an effective contempt sanction.