LCG & Ors v OVD & Ors

The tort of misuse of private information requires a fact-sensitive two-stage analysis. The claimant must first establish a reasonable expectation of privacy and a breach, before the court balances privacy against any competing rights, including freedom of expression. Photographs may receive special protection, and privacy may survive an initial disclosure.

Harassment requires a linked course of conduct which is deliberate, persistent, oppressive and sufficiently serious. Responsibility must be established against each defendant, directly or through active assistance or approval. Suspicion, association and family connection are insufficient. A claimant must also prove that alleged pressure caused the impugned transaction before duress or undue influence can arise.

The claimants alleged that members of an extended family and associated persons had obtained and misused private photographs, subjected them to harassment, and procured the withdrawal of earlier commercial litigation by duress or undue influence.

The court conducted a two-week trial involving extensive factual and procedural disputes, including late disclosure and changing pleadings. The central questions were whether the photographs were private, whether any defendant was responsible for their disclosure or later use, whether the alleged incidents formed a legally qualifying course of conduct, and whether the defendants caused the withdrawal of the earlier claim.

1. Misuse of private information. The court applied the two-stage approach derived from Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 and Murray v Express Newspapers plc [2009] Ch 481. Ms C1 had a reasonable expectation of privacy in photographs depicting aspects of her university social life which conflicted with her family’s cultural expectations. The expectation was not extinguished by prior disclosure to members of her family.
2. The discovery of publicly accessible material by Ms D5 and Mr D1 was not itself a misuse. Disclosure by Mr D1 to Mr C2 was prima facie a breach, but the balancing exercise, including the family context and Mr D1’s freedom of communication, did not make that disclosure unlawful. The anonymous author of the later “sergey” message had no corresponding right to threaten publication. The unknown author was liable in misuse of private information, although no named defendant was identified as responsible.
3. Harassment. Applying the principles summarised in Hayden v Dickinson [2020] EWHC 3291 (QB) and approved in Scottow v Crown Prosecution Service [2021] 1 WLR 1828, the conduct had to be linked, targeted, deliberate, persistent, oppressive and sufficiently grave. The claimant had to establish individual responsibility, including for anonymous conduct; a general cloud of suspicion or common family affiliation was insufficient. The incidents were heterogeneous, inadequately linked and, where responsibility was established, did not constitute the required course of conduct.
4. Duress and undue influence. The claimants failed to prove that the earlier commercial claim was withdrawn because of a threatening telephone call or any pressure attributable to the defendants. The contemporary evidence supported the explanation that the withdrawal resulted from the onset of the Covid-19 pandemic, concern for the claimant’s business and health, and religious and family considerations.
5. The claimants therefore succeeded only against the person or persons unknown responsible for the “sergey” message, to the limited extent of misuse of private information. The claim was otherwise dismissed.

First-instance decision. No prior appellate decision was stated.