BVC v EWF

A claimant may obtain summary judgment on misuse of private information where the information concerns sexuality, sexual life, health, finances or family life and the claimant has a reasonable expectation of privacy. That expectation is assessed objectively and is not defeated merely because some people may already know the information.

Publication must be justified by a contribution to a debate of general interest. A person’s right to tell their own story does not permit uncompromising disclosure of another person’s private life. An injunction restraining threatened internet publication may be granted by the court of the claimant’s centre of interests.

A harassment claim may remain unsuitable for summary judgment where the applicable foreign law has not been established.

The claimant sought summary judgment on claims for misuse of private information and harassment arising from the defendant’s publication of an account of their former relationship on a public website and from repeated emails. The claimant also sought strike-out or summary judgment on the defendant’s extensive counterclaim, while the defendant sought strike-out of the claim, discharge of an interim injunction and a reference on the interpretation of centre of interests.

The court had previously dismissed the defendant’s jurisdiction challenge. The issues included whether that challenge could be reopened, whether the published information was private, whether publication was justified by freedom of expression or public interest, whether the conduct amounted to harassment, and whether the counterclaim disclosed viable causes of action.

1. Jurisdiction. The defendant could not keep the jurisdiction challenge alive until trial. Jurisdiction had been determined at the interlocutory stage, and the purpose of that process was early and definitive legal certainty. A reference under Article 267 TFEU could not be used as a route of appeal against an evidential evaluation where the applicable EU law was settled.
2. Misuse of private information. The applicable two-stage test was whether the claimant had a reasonable expectation of privacy and, if so, whether that expectation was outweighed by countervailing interests, principally freedom of expression under Article 10. The information concerning sexuality, sexual behaviour, health, finances and family life was at the core of Article 8 values. The objective test was satisfied even if some friends or family knew the information or the claimant used sexual networking websites. Privacy does not depend solely on secrecy or confidentiality.
3. The defendant’s account did not contribute to a debate of general interest. The claimant was a private person and the publication concerned a private relationship. The defendant’s right to tell his own story did not include a right to expose the claimant’s private life without consent. The claimant therefore had no real prospect of failing on the privacy claim, and the defendant had no real prospect of defending it.
4. Remedy and jurisdiction. Under Bolagsupplysningen OÜ v Svensk Handel AB [2018] QB 963, an injunction concerning internet material was available in the jurisdiction of the claimant’s centre of interests or the defendant’s domicile. There was no valid distinction between removing existing material and restraining threatened republication. Summary judgment was granted for a permanent injunction and damages to be assessed, with the scope of assessment left open.
5. Harassment. The emails and website presented a strong prima facie case: the conduct occurred on multiple occasions, was targeted, was objectively calculated to cause alarm or distress, and was oppressive and unacceptable. However, under Rome II the applicable law for the harassment claim appeared to be the law of the country where the damage occurred, namely State B. The defendant therefore had a real prospect of defending that claim, so summary judgment was refused.
6. The counterclaim, alleging negligence, assault, intentional infliction of harm, trespass, conversion, deceit, malicious prosecution and abuse of process, was struck out. The claims were inadequately pleaded, out of time, unsupported by necessary elements, or concerned foreign conduct without a sufficient basis for proceedings in this jurisdiction. The defendant’s cross-application and the claimant’s application for a Hadkinson order were dismissed.

The judgment describes an earlier jurisdiction decision by Karen Steyn QC, sitting as a deputy High Court judge, on 5 October 2018. The defendant’s application was dismissed with costs and permission to appeal was refused by Floyd LJ on 14 February 2019.

• High Court (Queen’s Bench Division): summary judgment granted on misuse of private information; summary judgment refused on harassment; counterclaim struck out; defendant’s cross-application dismissed.