AMP v Persons Unknown – New Privacy Law?
In the case of AMP v Persons Unknown heard in December 2011, the Judge granted an injunction against “Persons Unknown” to prevent the transmission of sensitive, personal photos belonging to the Claimant.
In June 2008, the Claimant, who was granted anonymity in these proceedings, was a University student and either lost her phone or had it stolen. On the phone, were a number of private and personal photos of herself and a number of photos of her friends and family. Shortly after June 2008, a number of the photos were uploaded to an online media hosting service with her name and Facebook profile attached. The Claimant was subsequently alerted to these postings and the images were removed. She was later contacted by someone threatening to tell her friends about the images and her father’s business was allegedly blackmailed about some of the images.
In November 2008, the images were uploaded to a Swedish site which hosts files known as “BitTorrent” files and were downloaded by a number of people, the identities of whom were not known. The images had the Claimant’s name attached and could therefore easily be found by a search of her name online.
BitTorrent is a peer to peer file sharing protocol used for downloading large amounts and data and makes it easier to share files online. Each user who shares the file can be located by their Internet Protocol address (“IP address). The claim was brought against “Persons Unknown” because of the need to act quickly. Given the number of potential Defendants, the decision was taken to bring the action rather than try to identify each and every Defendant in the first place through their IP address.
The Claimant sought an injunction on two grounds namely:
- Under the right to preserve her right to respect for her private and family life under the Human Rights Act 1998 (Article 8), and
- Under the Protection from Harassment Act 1997 (section 3).
The test under Article 8 of the HRA is whether the Claimant has a reasonable expectation of privacy in relation to the photos. In this case, given the nature of the photos, the circumstances in which they were taken, the absence of consent of the Claimant and the effect on the Claimant, it was held that she would have a reasonable expectation of privacy. The Court then had to balance her right to privacy against the right of the publishers of the photos to their right of free speech also under the HRA. Given all the facts, the Court held that the balance fell down on the Claimant’s side.
The Court then went on to consider the Protection from Harassment Act 1997 and found that the dissemination of the photos could amount to harassment and that it was appropriate to grant an injunction on both grounds of privacy and Protection from Harassment Act 1997, pending the final trial of the matter.
This case is very interesting as it has the potential to be sought to be relied upon by people who feel they have been bullied or harassed by anonymous individuals on social networking sites such as Twitter and Facebook.
If you would like any more information on this, please contact Emma Hayward.