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.

CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814)

Royal Courts of Justice (ValP) / CC BY-SA 2.0

If you do not know what the outside of the Royal Courts of Justice on the Strand in London looks like, the picture above may help.  However, we expect that if you watch any UK television news, you will also see plenty of TV reporters do pieces to camera from outside the court.  This will particularly be the case around the date of this post because the case of CTB v. Twitter Inc. and Persons Unknown (Case No. HQ11X01814) is inevitably going to receive plenty of attention.  It has all the topical ingredients that media reporters could wish for: the case has been brought by a Premier League professional footballer (at present known merely as CTB); it references super-injunctions and involves the Llanelli glamour model, Imogen Thomas (plenty of scope for gratuitous library video footage).

However, whilst not denying these interesting elements, what we are interested in is the attempt to bring an action in the High Court in England (& Wales) against “Twitter, Inc. and Persons Unknown”.  Some of the background to the case is described in our previous post: Footballer CTB is suing Twitter.

It appears that as the claim form has yet to be served, its details have not yet been made public.

There are a number of questions that arise from the case.  How can CTB bring a claim against “Persons Unknown”.  Given that these are likely to be anonymous Twitterers, CTB cannot serve upon them any statement of claim or injunction.  In circumstances such as these, CTB could seek to obtain a Norwich Pharmacal Order in respect of each of the unknown persons.  A Norwich Pharmacal Order requires a third party to disclose the information that would enable unknown persons to be identified for the purposes of civil proveedings.  However, this is not appropriate in these circumstances as the person with the relevant identity information, Twitter, is outside of the jurisdiction.

Fortunately for CTB, there is a procedure to enable him to seek the Court’s permission to serve the claim form and orders out of the jurisdiction (Section IV of Part 6 of the Civil Procedure Rules).  The method for service is likely to be one of the methods permitted by the Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to which the UK and the United States of America are members.  It remains to be seen that even if these steps are taken, and Twitter is successfully serviced with the statement of claim or any Norwich Pharmacal Orders, whether Twitter would take any notice of them and submit to the jurisdiction of the High Court.

The next question concerns the nature of the statement of claim.  We speculate that it must be an application to commit to prison the persons, including Twitter, for aiding and abetting the breach of the original injunction against The Sun (NGN Limited) and Imogen Thomas (and thus being themselves in contempt of court).  Rather than prison, the disobedient parties can be subject to an unlimited fine and the court can order any act to be done at their expense. Until the claim form is in the public domain, we cannot be sure.  We are not aware at this point of any ISPs or social media platforms being the subject of this type of application, so we cannot say whether the High Court would be persuaded by the so-called “mere conduit” defence that Twitter could raise.  Strictly, this defence arises under the Electronic Commerce (EC Directive) Regulations 2002 (Regulation 17), enabling service providers of an information society service to evade liability for the content of information passing through their networks over which they have no control. Whilst the terms of the regulation give service providers a defence so that they “shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction”, we believe this has not been raised as a defence in contempt of court proceedings.