Shah Tasmina Hussain & Ors v Shamimur Rahman & Ors

Misuse of private information requires a fact-sensitive assessment of reasonable expectation of privacy, breach, and the balance between privacy and freedom of expression. Public accessibility does not necessarily eliminate privacy, particularly where photographs reveal aspects of personal, relationship or social autonomy. A disclosure may breach privacy even where the material was initially accessible, but proportionality and the circumstances of the disclosure remain decisive.

Harassment requires an objectively serious, deliberate, persistent and oppressive course of conduct, with a discernible link between the incidents. Liability must be clearly attributed to each defendant; suspicion, association or family connection is insufficient. Duress requires illegitimate pressure causing the claimant to act without practical choice.

The claimants brought proceedings arising from a family and business dispute. They alleged that photographs of the first claimant, obtained from social media, had been misused and used to threaten the second claimant. They also alleged harassment and that the second claimant had been induced by duress or undue influence to discontinue earlier commercial litigation.

The court conducted a lengthy fact-finding exercise concerning two sets of photographs, anonymous messages and telephone calls, and the parties’ changing pleadings and late disclosure. The central issues were whether the claimants had reasonable expectations of privacy, whether any defendant had misused the photographs or pursued a qualifying course of harassment, and whether the withdrawal of the earlier claim resulted from illegitimate pressure.

1. Outcome. The first and second claimants established misuse of private information by the unknown author or authors of the threatening “sergey” message. The claim was otherwise dismissed.
2. Privacy. The court applied the two-stage approach derived from Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 and the illustrative Murray v Express Newspapers plc [2009] Ch 481 factors. The first claimant had a reasonable expectation of privacy in images depicting her relationships, clothing and social autonomy, notwithstanding that some similar material had been publicly accessible. Photographs require special consideration because misuse may be particularly intrusive and voyeuristic.
3. The disclosure by Mr Rahman to Mr Hussain was prima facie a breach of the first claimant’s privacy, but, in the family context and on the facts found, the balance under Articles 8 and 10 did not make that disclosure unlawful. The “sergey” author had no equivalent protected interest and the message amounted to an attempted blackmail-style threat, outside Article 10 protection. The unknown author could not be identified as any named defendant.
4. 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, harassment required a linked course of conduct that was deliberate, persistent, oppressive and sufficiently grave. The incidents were heterogeneous, sporadic, differently targeted and insufficiently attributed. The two January 2022 calls did not establish a qualifying course of conduct.
5. Accessory liability required active assistance, encouragement or approval, rather than knowledge, acquiescence, sympathy or membership of the same family or faction. The defendants’ responsibility for the alleged anonymous incidents was not proved.
6. Duress and undue influence. The claimants failed to prove that the second claimant discontinued the earlier commercial proceedings because of a threatening call or other pressure attributable to the defendants. The contemporary evidence and inherent probabilities supported the explanation that the decision resulted from the onset of the Covid-19 pandemic, concern for the business and health, religious considerations and a wish to make peace with family.
7. The late evolution of the pleadings, evidence and disclosure materially reduced the weight of the claimants’ evidence and required careful attention to procedural fairness. Failure to prove an allegation did not establish that the opposite occurred; it meant only that the burden of proof had not been discharged.

First-instance decision. The judgment superseded the anonymised judgment formerly handed down as [2023] EWHC 2058 (KB) following orders revoking anonymity.