In this article we consider the decision of Mrs Justice Collins Rice in LCG and others v OVD and others [2023] EWHC 2058 (KB). The first and second claimants succeeded in establishing a claim for misuse of private information against persons unknown, but the judge was unable to attribute any of the alleged tortious conduct to the known defendants. The judgment is perhaps most notable for its lengthy treatment of the convoluted procedural history and factual background to the case, but it also provides a useful, if uncontroversial, reminder that the private quality of information is not lost simply because the information is, or has been, publicly available.
What are the practical implications of this case?
Whether someone has a reasonable expectation of privacy in respect of information is fact sensitive. While this is trite law, the present case makes clear that what might be considered anodyne information in one context might attract a strong expectation of privacy in another. Here, the first claimant’s (C1) expectation of privacy did not arise because of the inherent qualities of the photographs in question, which were drawn from the C1’s private Instagram, and mostly showed her living a conventional student life. Rather, C1’s culturally and religiously conservative family, combined with her efforts to keep her university life and her home life separate, meant she had a reasonable expectation of being able to assert autonomy over the sharing and use of the images by third parties.
The case also provides an important reminder that the mere fact of publication of information doesn’t necessarily deprive it of its private quality. This is true even where, as in the present case, the judge found that it was more likely than not that some of the photographs in issue were, at least for a short period, published by C1 on a public Instagram account, and therefore to the world at large.
The judge’s findings on the harassment claim also provide a useful point for practitioners working on cases involving harassment by anonymous parties. In these circumstances, a claimant needs to demonstrate a clear nexus linking the harassing conduct as a whole (whether in terms of subject-matter or method) to persuade a court that i) the instances making up the harassing conduct were performed by the same individual or ii) there was a single controlling mind behind the conduct.
What was the background?
The second claimant (C2) is a prominent businessman. The first claimant (C1) is his daughter. The first defendant (D1) is C2’s cousin. He had worked for C2, before starting a rival business (D3) along with the second defendant (D2) who was another family member. C2 had previously issued a claim against D1, D2 and D3 in an attempt to restrain D1 and D2 from competing with his business. In March 2020, C2 abruptly withdrew the case, citing the effects of the pandemic on his business.
In bringing a claim for misuse of private information, harassment and unlawful undue influence in 2022, the claimants presented a starkly different account of why C2 had withdrawn his claim in March 2020. It was not because of the effects of the pandemic, as he had previously claimed, but because he had been blackmailed by D1 and D2.
The claimants alleged that the D1 and D2 had threatened (principally via an anonymous message in March 2020 and an anonymous call in August 2020) to release photographs of C1, apparently taken from her private Instagram, unless C2 ceased his legal action. The content of the photographs, though anodyne by general UK standards (showing C1 with her boyfriend, and wearing swimsuits and ‘lowish-cut’ tops) would generally be frowned upon in the conservative religious community in which C1 and the known defendants lived and worked. The claimants sued for undue influence in respect of C2’s decision to abort his previous claim, misuse of private information in that the photographs were wrongly obtained and then wrongly used against C1 and C2, and harassment.
What did the court decide?
The case has a complex factual background and lengthy procedural history. The judgment spans 285 paragraphs, much of which the judge devotes to adjudicating on disputed issues of fact. It would be beyond the scope of this article to summarise the judge’s detailed factual findings. The present analysis is limited to the judge’s finding on liability in respect of the claims for misuse of private information and harassment.
Misuse of private information
The judge held that C1 had a reasonable expectation of privacy in respect of the photographs. She had been careful to keep her university life separate from her home life and had a reasonable expectation of being able to assert some control over the sharing and use by third parties of ‘any photo images created by her of her social life at odds with the cultural expectations with which her parents grew up’. That some of the images had previously been publicly available on C1’s Instagram was not, therefore, determinative of C1 having a reasonable expectation of privacy in respect of the information which the photographs conveyed.
In respect of the photographs, C2 did not have an expectation of privacy independent of his daughter. Although there was some commonality of interest between himself and C1 in preventing further disclosure and limiting the damage, C2’s expectation of privacy was no more than parasitic on his daughter’s. Nevertheless, the judge found that C1 and C2 had succeeded in establishing liability for misuse of their private information in respect of persons unknown. However, the claimants were unable to show that any of the known defendants were responsible for the acts said to constitute a misuse of their private information.
Harassment
After the judge’s findings of fact, only a limited selection of the conduct pleaded could be confidently attributed to known individual parties. Absent a pleading of conspiracy, the burden was on the claimants to show that each of the defendants had carried out a harassing course of conduct targeted at them. In the judge’s assessment, they did not discharge this burden. The ‘subject matter, the demands and the targeting’ of the conduct was too heterogenous to be confidently attributed to a single individual. As a result, the claim for harassment failed.
This article was written by Percy Preston of Brett Wilson LLP's media and communications law department. It was first published on Lexis® PSL on 7 September 2023 and can be found here (£). It is reproduced with permission and thanks.