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Hendersons - Barristers' Chambers
News 21st Dec 2011

Internet privacy injunction

Matthew Richardson, instructed by Griffin Law, appeared for the applicant in the TCC, in an unusual application believed to be the first example of a court granting an injunction to prevent data being spread by use of BitTorrent over the internet.

The application was brought on behalf of an individual, known as AMP, photographs of whom were circulating on the internet. The photos were extremely private and had not been obtained (or circulated) with AMP’s consent. AMP is not a widely-known figure, but was recognisable in the photos and was named in many of them. An online search for her name would enable anyone with access to the internet to find and view the photos.

The images were being shared and exchanged using a system called BitTorrent, which is a file-sharing protocol which allows users to join a swarm of other users to download and upload information from each other simultaneously, rather than downloading a particular file from a single server.  It is possible to identify and contact anyone involved in uploading the files (or part of them) through BitTorrent; such users are known as seeders.

Ramsey J considered that the publication of the photographs both engaged and infringed the applicant’s rights under Article 8 ECHR, and that there were no grounds on which Article 10 ECHR might operate in favour of publication. Applying s.12 of the HRA 1998, he granted an interim injunction, which would be binding on anyone who was served with it and who was allowing the images to be uploaded. Ramsey J also considered that the publication of the photos was a breach of the Protection from Harassment Act 1997. The effect of this is that a breach of the terms of the court order would be a criminal offence without any need to resort to contempt of court proceedings.

The order can be served on anyone seeding the images and will immediately make it a criminal offence to continue doing so. By shutting down all those seeding the BitTorrent, it is hoped that it can be shut down. The order is binding throughout the EU and can be enforced by use of a European Arrest Warrant. Similar proceedings have already been brought successfully in this case in the USA under the Digital Millennium Copyright Act.

It is anticipated that this may lead to a number of similar applications from individuals seeking to prevent private photographs of themselves or their families from being circulated online.

Reported judgment: AMP v Persons Unknown [2011] EWHC 3454 (TCC)

See related news story here.

Press coverage: The Telegraph 10th January

Press coverage: The Independent 10th January

Press coverage: Mail Online 11th January

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