GYH v Persons Unknown (Responsible for the Publication of Webpages)

An interim injunction may restrain online harassment where the claimant shows that she is more likely than not to obtain a final injunction. Harassment under the Protection from Harassment Act 1997 requires a persistent and deliberate course of unreasonable and oppressive conduct, targeted at the claimant and calculated to cause, and causing, alarm, fear or distress. A person’s occupation does not remove protection for private life. Publishing some information about a private zone does not waive privacy in all information within it. False allegations about sexual health may strengthen, rather than defeat, a misuse of private information claim. Where harassment is the true substance of the claim, defamatory content does not necessarily engage the defamation rule. Relief must be framed no wider than justified: a mandatory order for removal requires evidence of control, although an order to co-operate in removal may be appropriate.

The claimant brought proceedings under the Protection from Harassment Act 1997 against persons unknown responsible for online publications concerning her. She sought an interim non-disclosure order restraining publication of information about her sexual life, sexual and other health, and related allegations, together with an order prohibiting contact.

The proceedings had initially been transferred to the County Court, but the High Court transferred them back because a specialist judge was already prepared to hear the application. The central issues were whether the unidentified defendant could be sued, whether the notice requirements under the Human Rights Act 1998 were satisfied, whether the evidence established a likely entitlement to final relief, and what form of injunction was justified.

1. Interim relief. The claimant had to show that she was more likely than not to obtain a permanent injunction. The evidence established a prolonged, persistent and deliberate course of targeted conduct which was unreasonable and oppressive to a criminally unacceptable degree and had caused considerable distress. An interim order was therefore justified.
2. Harassment and privacy. The actionable conduct consisted of a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person, calculated to cause and causing alarm, fear or distress. Information about sexual life, sexual health, physical health and mental health concerned private life and ranked highly in the Article 8 hierarchy. The claimant’s work as an escort did not disqualify her from privacy protection. Publicising some information did not waive privacy in the whole of that area; the zonal approach was discredited and the assessment had to be tailored to the information in issue. False allegations did not undermine the claim and there was no public interest in disseminating false allegations of unsafe sex or HIV infection.
3. Defamation rule and commercial interest. The substance of the claim was harassment, principally carried out through misuse of private information. The presence of defamatory material did not make the claim an abuse designed to avoid the defamation rule, which was not applied. A commercial motive could weaken an injunction application, but the information remained inherently private and commercial, and damages were not an adequate remedy for the continuing distress established.
4. Notice and relief. The claimant had taken all practicable steps to identify and notify the defendant. There were compelling reasons under section 12(2) of the Human Rights Act 1998 not to notify the two internet platform providers before the hearing, although the order had to identify the non-parties to be served. The court granted a prohibition on contact and an order restraining harassment and specified publications. It refused a simple mandatory order requiring removal from the internet because control over the material was not shown, but was prepared to require co-operation and all steps within the defendant’s power to procure erasure.