Unknown unknowns – a place for super-injunctions?

El Atardecer

I think that it may be time to resurrect the super-injunction, which has been usurped by celebrities in a number of well-known defamation and related privacy cases.

My argument is based upon the recent case of AMP v Persons Unknown [2011] EWHC 3454 (TCC). AMP, a young woman, lost her mobile phone, which contained some rather private photographs intended only for her boyfriend. Her phone’s user password lock was not activated.

Sadly for her, the phone was found. The offending images were uploaded on BitTorrent, and began to be distributed on the internet. As her face was clearly visible, she was soon identified. AMP was contacted and was threatened that her identity would be exposed, as was her father, to whom threats of blackmail were made.

In an innovative judgement from the Technology and Construction Court,  Mr Justice Ramsey granted AMP an interim injunction against persons unknown (the BitTorrent seeders) against further seeding of the relevant images.

We know this because the judgement in AMP v Persons Unknown was published. However, my understanding is that even the limited information in the judgement was enough for determined individuals to identify AMP – a classic case of jigsaw identification. Fortunately there were not sufficient determined individuals to create a Streisand Effect around the publication of the AMP judgement on the date it was published. I also understand from AMP’s legal representatives that the order has been successful in getting the images of AMP removed from circulation on the internet (I would not be writing this blog if that were not the case).

I suggest that any risk of the order contributing to a jigsaw identification of a claimant could have been reduced significantly if the injunction had itself been made anonymous (a super-injunction), at least until such reasonable time set out in a sunset clause in the order to give the claimant time to act upon it.