In JRV & ARC v BRG [2023] EWHC 2238 (KB) Mr Justice Ritchie granted an interim privacy injunction preventing the publication of information about an extra-marital affair.
The judgment, handed down on 8 September 2023, is a concise but comprehensive judgment traversing the core principles of privacy injunctions.
Facts
In January 2022 the anonymised First Claimant JRV (who is married to the also anonymised Second Claimant ARC) began using a website, Killing Kittens, which allows people to connect with one another to pursue casual and group sex. Through that site he met the anonymised defendant BRG, and they began a relationship without informing one another they were both married.
Once the affair was under way, JRV and BRG told each other of their marriages. Following this BRG attempted to blackmail JRV into paying for her loft conversion. She indicated that she would reveal “private and compromising” material to ARC and additionally suggested “that her ‘husband’ knew people who would ‘visit’ [JRV]’s house, implying violence” BRG also posted explicit images of JRV to her Killing Kittens profile, without his consent, and sent a ‘friend request’ to ARC on Facebook (but subsequently withdrew it). All of this conduct occurred during the course of the affair.
The affair ended in May 2023, following which BRG reported JRV to the police for rape, sent a card to ARC disclosing the affair, and sent ARC a message on Instagram. BRG additionally set up a public blog and began “drip feeding” her version of the details of the affair to the public. She also attempted to ‘follow’ various online connections of JRV and ARC. BRG continued to post information on the blog which made it increasingly easier to identify JRV (for example by including an area of London he was connected with, several partially obscured photographs of him, and information about the football team he supported).
On 1 September 2023, JRV was contacted by a journalist seeking comment for an article she was writing about the affair. At this point JRV and ARC sought an injunction against ARC, and anonymity to protect the private information they said BRG was threatening to misuse.
The decision
Ritchie J granted the application for anonymity – noting that the purpose of the application would be defeated if anonymity were not granted, and that it avoided the need for matters to be heard in private. She went on to address the Court’s general jurisdiction to grant injunctions, and applied the ‘will you win test’ – deciding that on balance, it was likely that JRV and ARC would be able to establish that the publication restrained (i.e. the blog and/or the proposed news article) would not be allowed.
Ritchie J then addressed the Supreme Court’s decision in PJS v News Group [2016] UKSC 26, reiterating that the starting point is that there is not, without other factors being present, any public interest in the disclosure or publication of purely private sexual encounters. Ritchie J also reiterated that the important public interest test is entirely separate from ‘things the public is interested in’.
Comment
The legal issues raised by this case are unremarkable. Where a defendant is engaged in a serious course of harassment that includes blackmail this will normally tip the scales very much in favour of a claimant’s privacy and undermine any freedom of expression/public interest argument.
The main takeaway from the case for journalists and media lawyers is a reminder, seven years on from PJS, that the publication of kiss and tell stories (absent important public interest factors) will normally amount to a misuse of private information.
The significance of an interim injunction in these circumstances is that it binds third parties on notice of the order, including the media.