Middleton & Anor v Person Or Persons Unknown

On an interim application for privacy protection, the court may grant an injunction against persons unknown where the defendants are described with sufficient certainty to identify the class of persons restrained. Under section 12 of the Human Rights Act 1998, compelling reasons may justify proceeding without notifying unidentified respondents. The court must also be satisfied that the claimant is likely to establish at trial that publication should not be allowed. In balancing privacy and freedom of expression, the absence of genuine public interest, the private nature of the material, and the fact that it is not already public may strongly favour protection under Article 8 over an Article 10 challenge.

The claimants sought continuation and expansion of an interim injunction granted urgently by Dove J after photographs from the first claimant’s iCloud account were apparently accessed without authorisation and offered to the press. The defendants’ identities remained unknown, although a man arrested in connection with the police investigation was represented at the hearing.

The pleaded causes of action included misuse of private information, breach of confidence, copyright infringement and breach of statutory obligations under the Data Protection Act 1998. The central issues were whether the injunction could properly be continued against persons unknown, whether the statutory requirements under section 12 of the Human Rights Act 1998 were met, and whether the order should extend to all information held in the iCloud account.

1. The application was granted. The interim injunction was continued until trial or further order and widened to prohibit the use, publication, offer for sale or disclosure of all information derived from, or suspected reasonably to derive from, the first claimant’s iCloud account.

2. Under section 12(2) of the Human Rights Act 1998, the court must be satisfied that reasonable steps have been taken to notify the respondent or that compelling reasons justify proceeding without notification. That requirement was met because the defendants’ identities were unknown and notification was impossible.

3. It was permissible to make an order against persons unknown. Following Bloomsbury Publishing Group plc v New Group Newspapers Ltd [2003] 1 WLR 1633, the description of the defendants as persons who had appropriated, obtained, or offered or intended to offer for sale or publication images from the account was sufficiently certain to identify them.

4. For section 12(3), the court was satisfied that the claimants were likely to establish at trial that publication should not be allowed. The apparent hacking of the account was a criminal act and publication or sale of the information would constitute misuse of private information.

5. The section 12(4) factors strongly favoured the claimants. The material lacked genuine public interest, was not already public or about to become public, and fell within the Editors’ Code protection for private and family life, including digital communications. Any Article 10 argument was weak, while the Article 8 case was strong. The balance at the interim stage therefore favoured the injunction, subject to review at trial or earlier if appropriate.

6. Time for service of the Claim Form was extended to 28 October 2016, with liberty to apply for further time.

First-instance decision. The judgment records that Dove J had granted an earlier urgent interim injunction on 24 September 2016.