AMP v Persons Unknown - December 2011

Snaps of a Sexual Nature

Facts and comment:

The claimant’s mobile phone was stolen, which contained explicit sexual photographs taken for the personal use of her boyfriend. The claimant’s face was identifiable in the images.

The claimant applied for an interim injunction to prevent transmission and storage of the photographs and an anonymity order under CPR s.39.2(4). The application was granted based on the right to privacy under Article 8, and the Protection from Harassment Act 1997.

After the mobile phone was stolen, photographs were uploaded to an online hosting service using a Bit Torrent service. The claimant was contacted on the social networking site, Facebook, by someone making threats to post the images widely online. Additionally, her father’s business PR team were contacted and blackmailed about some of the photographs. The images were also uploaded to a Swedish website with the claimant’s name affixed, so they could be easily searched for online. When searching for the claimant online, the link to the photographs was the first on the list of the results.

The court heard that it is possible to identify the unique IP address of every computer who has shared the files using the Bit Torrent Service. The ‘sharer’ will then be served with an order requiring them to take steps to stop their account from being used, preventing distribution of the files. It is also possible to prevent search engines from marking particular sites and files which contain specific words. In this case, the claimant’s name could be filtered out on that basis.

There was sufficient evidence that the conduct by the ‘Persons Unknown’ amounted to harassment under the Protection from Harassment Act 1997, as the claimant suffered from alarm and distress. As stated, the interim injunction was granted under Article 8 of the Convention. The claimant had a reasonable expectation of privacy in relation to the sexual photographs (Campbell v MGN 2004). Despite the fact that Article 8 rights usually have to be balanced against Article 10 rights, (freedom of expression) the case was not one where press freedom was at issue.

The most noteworthy aspect of this case is that the claim was brought against ‘Persons Unknown’. It was explained that until sharers of the photographs had been identified by their IP address and their contact details have been obtained by their provider, they cannot be made a party to the claim. The vast number of potential defendants and the need to move rapidly to prevent increasing numbers of sharers counters the need to identify defendants at present. The standard procedure to identify defendants would be costly and time-consuming which would diverge from the main aim of anonymity. Mr Justice Ramsey accepted that identifying the defendants by reference to whether they possess any of the images would be a sufficient description to enable them to be served with a court order. It was therefore appropriate for the application to be granted in the name of ‘Persons Unknown’.

This is a ground-breaking case in relation to social media and could have significant consequences for bringing users of social networking sites, for example Twitter and Facebook within the realms of the law.

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