GYH v Persons Unknown (Responsible for the Publication of Webpages)

The claimant applies without notice to the defendant for an interim non-disclosure order to restrain what she alleges is a campaign of harassment. The campaign consists mainly of the publication of various items or categories of personal information or purported information about the claimant. These include allegations that the claimant has HIV/AIDS, and other information or purported information about her sexual life, and her physical and mental health. It is the claimant’s case that the allegation that she has HIV/AIDS is false, as is some of the other information about her.

Such information or purported information has been, and continues to be, published online at several locations. The claimant’s case is that the publications have caused her considerable distress. They are said to amount to harassment by the misuse of private information. The claimant also maintains, as part of her claim, and as part of her argument in support of an injunction, that some of them are both defamatory and untrue. She relies on other more recent conduct as forming part of the same campaign.

This public judgment on the claimant’s application is given after a hearing, the majority of which was held in public. Some short parts of the hearing had to be held in private in accordance with CPR 39.2(1)(a), (c) and (g), to avoid compromising the very privacy which the claimant seeks to protect. But it was possible to make public, without prejudicing the claims themselves, the nature of the application, all the legal issues, and a large part of the factual content. The same is true of this judgment, which will make clear what the application was about, and how and why I resolve it in the way that I do: by granting an interim non-disclosure order.

Before addressing the merits of the application there are some procedural issues with which I should briefly deal.

First, there is the question of venue jurisdiction. The proceedings were started by a claim form issued on 1 December 2017, claiming damages and an injunction pursuant to the Protection from Harassment Act 1997 (“the PHA”). On the same day the claimant applied for and obtained anonymity orders, which are reflected in the title of the action. On 5 December 2017, the assigned Master ordered of his own initiative that the action be transferred to the County Court at Central London. That order was made in the exercise of the discretionary power conferred by s 40(2) of the County Courts Act 1984. Delay in the sealing and service of that order meant that the claimant pressed on with this application in the High Court in ignorance of the transfer order, and it was listed for hearing by me on 14 December 2017. I learned of the true situation late on the eve of the hearing. On the morning of the hearing it was possible to alert the claimant’s Counsel to the situation and recover the file from the County Court. Mr de Wilde applied for an order for the case to be transferred back to the High Court. I granted that order, for the following reasons.

Section 41(1) of the County Courts Act 1984 provides that:

“If at any stage in proceedings ... transferred to a county court under section 40, the High Court thinks it desirable that the proceedings, or any part of them, should be heard and determined in the High Court, it may order the transfer ... of the proceedings or, as the case may be, of that part of them.”

Factors to which the court must have regard when deciding whether to make such an order are specified in CPR 30.3(2). They include the following:

“(b)

whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;

(c)

the availability of a judge specialising in the type of claim in question and in particular the availability of a specialist judge sitting in an appropriate regional specialist court;

(d)

whether the facts, legal issues, remedies or procedures involved are simple or complex;”

Mr de Wilde focused his submissions on paragraph (d), emphasising the legal complexity of the case. He also asserted that the case is inherently suitable for resolution in the Media and Communications List. There is certainly something in those arguments, as will become clear when I deal with the issues that arise on the merits. So far as the injunction hearing was concerned, however, I preferred to base my decision on the following factors, falling under paragraphs (b) and (c): in unusual circumstances, and through no fault of the claimant, the case had been put before a specialist High Court judge, with Counsel and the Judge fully prepared; it was inherently convenient for me to hear the application, rather than waste the resources of the Court and the claimant by requiring her to present the application to the County Court.

I concluded that it was better to transfer the case as a whole, rather than just the injunction application, because it seemed more likely than not that the proceedings would have only one further stage to them: a return date at which an application would be made for judgment in default, including a final injunction. It would be more convenient for that to be dealt with in the Media and Communications List, reserved to me if available. If, contrary to expectations, a defendant emerged to defend the claim the issue of transfer could if necessary be revisited.

The second procedural issue is the identity of the defendant. The claimant sues “Persons Unknown”, coupled with descriptive wording referring to two world wide web addresses at which content of which the claimant complains has been published. I shall refer to the defendant as “he”, because it seems most likely to be one male individual. It is open to a claimant who cannot identify those responsible for the conduct complained of to sue “Persons Unknown”. The principles are identified in Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch) [2003] 1 WLR 1633. The court must however keep a watchful eye on claims brought against persons unknown, to guard against any abuse of the facility to bring claims in this way.

The third procedural point is linked to the second. Section 12(2) of the Human Rights Act 1998 prohibits the court from granting relief which might affect the exercise of the Convention right to freedom of expression unless it is satisfied “that there are compelling reasons why the respondent should not be notified or that the applicant has taken all practicable steps to notify the respondent.” There is no suggestion that there are any good reasons for not notifying the defendant. The issue, so far as it is concerned, is whether all practicable steps have been taken to notify him.

The evidence before the Court describes in some detail the efforts made on behalf of the claimant to identify the person responsible for the offending publications. These efforts have been extensive and, in my judgment, thorough; but although the claimant can identify those responsible for the platforms on which the statements have been made, it has proved impossible to trace any individual who has posted those statements. The evidence was updated at the start of the hearing by means of a statement explaining the steps taken to prompt a police investigation, and the status of that investigation. I am satisfied that the claimant has taken all the steps that could be taken to identify a defendant who might be served with this claim, but without success.

There is another aspect to the section 12(2) issue. The skeleton argument for the claimant explains that one purpose of this application is “to serve the injunction on third party platform providers who are participating in the publication of harassing material about her in order to achieve Spycatcher relief”. This of course is a reference to the doctrine that publication by a third party which is on notice of an interim injunction designed to protect confidentiality will be in contempt of court if they act so as to defeat or undermine the Court’s purpose in granting that injunction.

The evidence explains that an injunction, if granted, will:

“ … be used in an effort to bring the campaign of harassment against the Claimant to an end, by preventing further publication of the Claimant’s private information and/or the defamatory allegations about her on the internet: it will be served on the platform providers which are hosting the pages containing that information, or which link to that information, and used in an effort to persuade internet search services … to de-list search results referring to the Claimant…” Second, the granting of an injunction may enable the Claimant to serve the injunction on the individual responsible”

The application thus engages the principles set out in the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003 (“the Guidance”) at paragraph 19:

“HRA s12(2) applies in respect of both (a) respondents to the proceedings and (b) any non-parties who are to be served with or otherwise notified of the order, because they have an existing interest in the information which is to be protected by an injunction (X & Y v Persons Unknown [2007] EMLR 290 at [10] – [12]). Both respondents and any non-parties to be served with the order are therefore entitled to advance notice of the application hearing and should be served with a copy of the Application Notice and any supporting documentation before that hearing.”

It may be that the main motivation behind this guidance is the need to ensure that third parties who are traditional or mainstream publishers on whom a claimant intends to serve an injunction have a chance to argue the merits before any order is made. But the Guidance is not limited in that way.

No third party has been served with the application papers in this case. Mr de Wilde submits that this is justified pursuant to s 12(2). He has not sought to rely on the justification for non-service offered in the evidence of the claimant’s solicitor, namely that “the platform providers are by their nature secretive and not inclined to engage with the legal process”. Instead he has invited me to infer from the evidence and all the circumstances that, in the case of the two platform providers who are referred to in the description of the defendant, there is a real risk that prior notification would be counter-productive. The risk suggested is that notice to these platform providers would lead to an escalation of the conduct complained of. I have been persuaded, albeit narrowly, that the evidence does justify that inference, and that it amounts to a compelling reason for not notifying the platform providers. I bear in mind the observation in paragraph 22 of the Guidance that whilst

“It will only be in truly exceptional circumstances that failure to give a media organisation advance notice will be justifiable on the ground that it would defeat the purpose of an interim non-disclosure order. Different considerations may however arise where a respondent or non-party is an internet-based organisation, tweeter or blogger, …”

That said, as indicated in paragraph 20 of the Guidance, the order will need to contain a schedule providing details of all non-parties to be served, and this may only include the two platform providers to which I have referred.

The best way to summarise the claim is to set out the relevant parts of the Details of Claim contained in the Claim Form, to which I have added paragraph numbers. The Claim Form describes the parties as follows:

“[1] The Claimant is a transgender woman who works as an escort, and who provides sexual and companionship services to her clients under a work name (“the Services”). She is an active user of social media and maintains a Facebook profile, a YouTube Channel and a blog. ”

[2] The Defendant is the unknown person responsible for conduct and a series of publications set out in more detail below, and thought to be resident in this jurisdiction. The Defendant is identified by description.

The Claim Form goes on to make the following factual allegations:

“[3] Around 4 December 2015, the Claimant received a text message from an unknown person claiming to be a student who wished to meet her socially, but not to pay her for the Services. The Claimant declined to meet the unknown person and the text message conversation deteriorated into abuse, including the allegation that the Claimant spreads sexually transmitted diseases. The Claimant received anonymous telephone calls around this time which also directed abuse of a similar kind towards her.

[4] Shortly following the exchange of text messages with the unknown person, the Claimant was targeted by a wide-ranging campaign of online harassment, in which information was posted on websites in relation to both her legal and work names. The Court will be asked to infer that the same unknown person was responsible for the text messages, the phone calls and the website postings.

[5] The websites in question relate to the provision of sexual services for money, and to sex and pornography specifically relating to transgender women (“the Websites”). They target the Claimant, ensuring that they come to her attention, and to that of anyone searching for either her legal or work name on the internet. They do so by: using her work name in their URLs, headlines and other areas where such usage is likely to have an effect on the Websites’ prominence in search results; using pictures of the Claimant (often altered in an offensive manner); and by publishing highly specific and identifying personal information about the Claimant’s background, legal name, sexuality, and provision of the Services.

[6] The publication of the Websites is persistently harassing of the Claimant, and they contain a number of very oppressive and unpleasant features beyond those which target her set out above, including: (1) the purported private information that the claimant is mentally ill, is anorexic, practices unsafe sex with her partner, and has STDs, including HIV; (2) the defamatory and seriously harmful allegation that, when offering the Services, the Claimant does so notwithstanding her infection with STDs and/or HIV, and the associated allegation that she practises unsafe sex when offering the Services; and (3) images of the Claimant, or supposed images and video of the Claimant, some of which have been altered in an offensive manner, containing extremely intimate and private information, the publication of which exacerbates the impact of the disclosures and allegations set out immediately above.

[7] Following attempts to identify the Defendant via the Norwich Pharmacal process and resulting contact by the Claimant’s solicitors with a person thought to be responsible for publishing the Websites, the Claimant was visited on 6 July 2017 by a person who accused her of sleeping with his father, who threatened her, and said he would take from her money that his father had paid the Claimant. The Claimant then received a phone call purporting to be from the Police and telling her that she should delete any messages from the individual who had visited her from her phone. The Claimant agreed, and the caller laughed and told her that he wasn’t a Police officer. The Court will be asked to infer that the same unknown person was responsible for the visit and subsequent phone call as for the earlier communications and publications.”

The body of the Claim Form concludes:

“The Defendant knew or ought to have known that his conduct in sending text messages to the Claimant, making anonymous phone calls to her, publishing the said information on the Websites, and for visiting and/or making further anonymous phone calls to her amounts to harassment of the Claimant. The Defendant’s conduct is contrary to sections 1 and 3 of the Protection from Harassment Act 1997. By reason of the matters set out above, the Defendant has alarmed the Claimant and caused her anxiety and distress and continues to do so. This distress gives rise to a claim in damages, including aggravated damages, and for an injunction, against the Defendant. ”

The application is supported by three witness statements, one from the claimant herself, and two from her solicitor, Yair Cohen. The first two of these deal with the merits of the claim and the procedural issues. The most recent is the second statement of Mr Cohen. This sets out details of a report to the police about the conduct complained of. According to this evidence, the police were furnished with copies of the evidence accumulated by the solicitors on 22 August 2017. On 6 December 2017, Mr Cohen spoke to a named detective constable, who is investigating the allegation of harassment. The detective told Mr Cohen that he had made numerous requests in relation to the ownership of mobile telephone numbers. He had not yet been able to establish ownership in relation to any of these, but was still awaiting replies from some phone service providers. The investigation is still ongoing.

In response to queries from me, the form of injunction sought was modified in the course of the hearing. The order now sought would require the defendant to “cease forthwith to publish in any printed or online publication the information relating to the Claimant set out in Confidential Schedule A … by removing the said information from the Internet in its entirety”. Confidential Schedule A is in two parts. Part I lists six items or categories of information or purported information about the Claimant (“the Part I Information”). Part II of Schedule A would prohibit “further or alternatively” the publication of the Part I Information “in conjunction with the information that the Claimant (i) is a transgender woman; (ii) has the legal name [GYH]; and/or (ii) lives in [LMN].”

Secondly, the order sought would also restrain the defendant from continuing to publish or publishing in the future “the name, image or likeness of, or other identifying detail referring to the claimant ... in any printed or online publication … which makes reference to the information in Confidential Schedule A or to similar information..” This prohibition is subject to exceptions permitting the defendant to take legal advice and to correspond with the claimant’s solicitors.

Finally, the claimant seeks a prohibition on contact with her, by email, letter, telephone, social media or in any other way.

This is an application for an injunction the effect of which will, in part, be to restrain free speech. The key principles that apply to such applications are well-established. They are to be found in ss 6 and 12 of the Human Rights Act 1998, Articles 6, 8 and 10 of the Convention, ss 1, 3 and 7 of the PHA, and a number of well-known authorities, the most significant for present purposes being Cream Holdings v Bannerjee [2005] 1 AC 253, Re S (A Child) [2005] 1 AC 593, McKennitt v Ash [2006] EWCA Civ 1714 [2008] QB 73, Murray v Express Newspapers Ltd [2008] EWCA Civ 446 [2009] Ch 481, ASG v GSA [2009] EWCA Civ 1574, Law Society v Kordowski [2011] EWHC 3185 (QB) [2014] EMLR 2, and PJS v News Group Newspapers Ltd [2016] UKSC 26 [2016] AC 1081. Mr de Wilde has also referred me to the decision of Laing J, DBE, in Merlin Entertainments plc v Cave [2014] EWHC 3036 (QB) [2015] EMLR 3 and to my own recent decision in LJY v Persons Unknown [2017] EWHC 3230 (QB).

I approach the application on the basis that the claimant must persuade me, at the minimum, that she is more likely than not to succeed in obtaining a permanent injunction. For that purpose, I must ask myself whether the factual case put forward is more likely than not to be established and, to the extent that it is, whether the Court is more likely than not to conclude that the facts justify the grant of the relief claimed.

My primary focus must be on the cause of action asserted, namely harassment contrary to the PHA. That requires proof of a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: Hayes v Willoughby [2013] UKSC 17 [2013] 1 WLR 935 [1] (Lord Sumption SC). To be actionable, the conduct must cross the boundary from the regrettable to the unacceptable, to such an extent that it would sustain criminal liability: Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34 [2007] 1 AC 224 [30] (Lord Nicholls).

In the absence of any respondent to the application I must be vigilant in identifying and giving appropriate weight to any point of fact or law that might be said to count against the grant of the relief sought. To help me in that task I rely of course on the claimant’s duty of full and frank disclosure. Mr de Wilde has very properly highlighted some factors that might be said to count against the grant of the injunctions sought.

There are elements here of misuse of private information and of defamation. I shall need to consider these, and whether the element of defamation means that the case should be assessed by reference to the higher threshold imposed by what is known as “the defamation rule” (for which, see LJY v Persons Unknown at [41]-[42]).

In my judgment, the evidence reveals a prolonged and persistent course of conduct by one or more individuals, targeted at this claimant, which is plainly deliberate and has caused considerable distress. On the evidence that is before me, giving full weight to what can be said against the claim, I conclude that the grant of an interim order is amply justified, in order to restrain continued harassment of the claimant and/or the continued misuse of private information relating to her.

A trial court presented with the evidence now before me would not just be likely to conclude, I am satisfied that it would find, that the course of conduct engaged in was unreasonable and oppressive to such a degree that it is unacceptable, and would justify criminal proceedings against the perpetrator(s). There is presently no good reason to suppose that any compelling or even persuasive evidential case will be advanced by way of defence.

This case presents what may be an unique mix of factual and legal ingredients, but at the heart of the matter are some categories of personal information that are of an intimate and plainly sensitive nature: information about sexual life, about sexual health, about physical health, and about mental health. Information about a person’s sexual conduct and practices, about sexually transmitted diseases they have, and about their mental health, is all information about the person’s private life. The right to control what is done with such information, and the right to respect for information of these kinds, rank towards the upper end of the Article 8 hierarchy. That remains true in this case, even if some of the information is also information relating to and relevant to the claimant’s occupation. That factor is relevant but it does not mean the information is not private.

The fact that the claimant is an escort providing sexual services is undoubtedly relevant to the assessment of her claims. For one thing, a person’s past conduct may be relevant to whether they have a reasonable expectation of privacy: Spelman v Express Newspapers Ltd [2012] EWHC 355 (QB). Work of this kind does not disqualify a person from the protection given to private life. But the claimant’s role inevitably means that she is likely to have made public or placed beyond her control some information about her sexual life and, on the evidence, she plainly has done so. Someone who makes information about herself public may have no reasonable expectation of privacy in relation to that or similar information and hence no right to prevent others from disclosing it. It is well-established, however, that there is no question of a person waiving her right to privacy in a particular zone of her private life, merely by publicising some information falling within that zone: see McKennitt v Ash [55] (Buxton LJ). The “zonal” approach to reasonable expectations of privacy is discredited. The Court’s approach must be more tailored than this.

Asked to show me the high point of the case that could be made by the defendant, if he were here to respond to the application, Mr de Wilde directed me to a review of the claimant’s services posted on 19 October 2016 on a website seemingly devoted to providing UK “punters” with consumer information, and to the claimant’s own response posted later the same day. The review contains a description of the claimant, her attributes, the flat, and what the two of them did, with a list of positives and negatives, and an overall evaluation (“Neutral”). A number of questions and comments followed from two others, before the claimant’s response at 10:31pm, saying “Thank You for the review”, accompanied by seven pictures of herself.

Mr de Wilde acknowledges that the claimant could be taken to have approved and consented to the disclosure of the information in the review and her response. The claimant acknowledges that the nature of her work means that she accepts the disclosure of some private information about her online. Mr de Wilde submits, however, that such disclosures and such approval and consent do not mean that the claimant has entirely surrendered control over her privacy and online identity. He argues that the campaign of which she complains is a sweeping attack on the values of autonomy and dignity which are at the heart of the right to privacy. That is an argument which I consider would prevail at any trial of this claim. The information which is the target of this application is of a different nature entirely from the information that the claimant appears to have distributed herself, or to have approved.

It would be going too far to say that a person providing sexual services for reward as an escort has an unqualified right to decide what information about themselves can be made public. A person in that business may have to put up with some unwanted disclosures about themselves. On appropriate facts, no doubt, there would be a public interest in the circulation of information which the person concerned would not want distributed. As I observed to Mr de Wilde, if a sex worker practised unsafe sex and had contracted HIV/AIDS yet continued to work there would be a clear justification for warning those who might suffer the consequences. In Convention terms, the Article 10 rights involved would outweigh the Article 8 rights. But the communications complained of in this case are not cast in the form of public health warnings. Nor would the channels of distribution seem well-suited to that purpose. More importantly, and in my view fundamentally, there is credible and uncontradicted evidence that these allegations are false. Here, the claimant states that she does not practise unsafe sex, is HIV negative, and had had a negative test in September 2016. There is no public interest in the distribution of false information of this kind, nor is it reasonable to publish false allegations to this effect. On the contrary.

Similar reasoning applies, if this case is examined from the viewpoint of defamation law. Some at least of the publications complained of convey defamatory meanings to the effect that the claimant carries on business as an escort providing sexual services even though she has practised unsafe sex and contracted a sexually transmitted disease. The claimant is justified in her assertion that imputations of that kind cause serious harm to reputation. The credible and uncontradicted evidence is that such imputations are false. There could be no other defence available, at least so far as future publication is concerned.

It follows that, on the facts, the question of whether the defamation rule should be applied does not appear to be determinative. But I would not have applied it in this case. I accept that, objectively assessed, the “nub” of the claimant’s claim is a complaint of harassment. Her evidence of distress is detailed and convincing. The principal means by which the harassing conduct has been carried out is, analytically, by the misuse of private information about the claimant. The fact that some such information is false does not undermine the claim. It tends rather to support it. The fact that some of the information happens to be defamatory should not undermine the claim, either. This is not, in my judgment, an instance of a claimant abusing the process by “shopping” for a cause of action which will help her avoid the application of the defamation rule.

It is apparent that this claim has a commercial motive behind it, as well as a personal and private one. The claimant says, in the context of her complaint of defamation, that she “can point to clients or prospective clients who have referred to these allegations and declined to continue using [her services] as a result.” If a claim is brought to protect a reputation for commercial reasons that can tend to weaken if not undermine a claim to restrain publication as a misuse of private information. That may be so because it weakens the case that the information is private. On the facts of this case, however, the information about sexual conduct and sexual health is inherently both private and commercial. A commercial interest can undermine an injunction application of this kind for at least two other reasons: (a) because it will mean that the defamation rule applies; and (b) because damages would be an adequate remedy: see Terry (previously LNS) v Persons Unknown [2010] EWHC 119 (QB) [149](ii). But the first consideration does not operate here, for the reasons already given. The second does not apply because, in my judgment, there is a sincere and credible case that the claimant continues to suffer distress which could not in principle or in practice be compensated by money.

As Tugendhat J observed in ZAM v CFW [2013] EWHC 662 (QB) [21], campaigns of vilification involving the publication of defamatory allegations, indecent images, or private or personal information are increasingly the subject of interim injunctions for harassment. In this case the claimant has persuaded me that her case fits this description, that she would succeed at trial in establishing that the continuing publication and other harassing conduct should be restrained, and that she is therefore entitled in principle to an injunction to prevent the continuation of the harassment to which she has been subjected.

That said, the revised form of order sought needs further refinement, in my view. There are two kinds of order contained in the present draft: one prohibitory and the other mandatory. So far as the prohibitory injunctions are concerned, I can see a strong case for a simple prohibition on contact with the claimant herself, and I grant that order. Otherwise, the nub of the claim being harassment the more appropriate form of order is one that explicitly prohibits the defendant from pursuing a course of conduct which amounts to harassment of the claimant, contrary to the PHA. This can and should be coupled with prohibitions against harassing the claimant by means of particular, specified acts.

I would accept that a prohibition on publishing or causing the publication in any printed or online publication of the information specified in the re-structured Confidential Schedule A would draw an appropriate line. That should largely, if not entirely, cover the ground occupied by the proposed restraint on the publication of identifying details linking the claimant with any of that information. The exceptions provided for should remain, subject to modification to reflect the wording in paragraph 6(a) of the Model Order attached to the Guidance.

I have not been persuaded that the evidence justifies a simple, mandatory order to the defendant to remove such information “from the Internet in its entirety”. That might be justified if it were established that the defendant had control over the material now on the platforms in question, but the evidence does not demonstrate this. I would however be prepared to grant an order requiring the defendant to consent to, co-operate with, and to do all such things as are in his power to procure, the erasure of any of the specified information from the websites in question, and other places on the internet.

Prompted by what I said about this topic in LJY v Persons Unknown at [48]-[56], the draft order prepared by the claimant’s legal team in this case proposes a regime for the further conduct of the action which is similar to the one I approved in that case. A return date for the injunction application is provided for in the usual way. The draft order then provides that if the claimant is able to identify the defendant or a viable means of contacting him, “then she shall serve the claim form, this order and any other documents in these proceedings on the defendant as soon as reasonably practicable by email or text message”. If she is unable to do this within 28 days, then “the filing of the Claim Form at Court on 1 December 2017 shall be deemed good service pursuant to CPR r 6.15(2) and the claimant shall either (a) apply at the return date … for default judgment and/or final determination of the claim; or alternatively (b) discontinue the proceedings.”

The claimant will need to give an undertaking to (continue to) use her best endeavours to trace and serve the defendant: cf Kerner v WX [2015] EWHC 128 and 178 (QB). Subject to that, and provided that the return date is set not less than 7 days beyond the expiry of the 28 day period for service, this regime seems satisfactory.