October 14, 2019

The claimant, BVC, issued proceedings against his former partner, EWF, for misuse of private information in relation to a website created by EWF disclosing details of his sexual relationship with BVC. BVC also issued a claim for harassment under the Protection from Harassment Act 1997 in relation to publication of the website and a series of emails sent by EWF to BVC.

The website account of the parties’ relationship began with a photograph of BVC, and was headed “My Secret Life – An exposé of [BVC’s] decade of deceit and abuse of his former partner”. As well as giving BVC’s full name, nationality, profession, and place of work, it included information on BVC’s sexuality and his relationship with EWF, his sexual life, his health, his family life, financial information and allegations that he had been involved in criminal or regulatory wrongdoing.

His Honour Judge Parkes found that the central information disclosed concerned BVC’s sexuality and sexual behaviour, which was, together with information about his mental and physical health, finances and private and family life, at the core of the values that Article 8 protects. HHJ Parkes therefore had no doubt that BVC had a reasonable expectation of privacy in the website information.

As for the allegations that BVC had been involved in criminal wrongdoing, HHJ Parkes noted that, following Richard v BBC [2018] EWHC 1837 (Ch), it is established that (in general) a person has a reasonable expectation of privacy in the fact of a police investigation, at least up to the point of charge.

EWF argued that the disclosure of BVC’s alleged wrongdoings was in the public interest and that he had a right to tell his own story under Article10.

HHJ Parkes disagreed, finding that EWF had no prospect of establishing that the publication contributed to a debate of general interest. BVC was a private person, not a public figure, and the website concerned private matters arising during a private relationship. There was no possible wider public interest.

HHJ Parkes agreed that there is a right to tell one’s own story under Article 10, but observed that this must be done without intruding into a claimant’s private life. Further, a substantial factor in EWF’s motivation was a desire for revenge on BVC for perceived wrongdoing on his part.

HHJ Parkes concluded that BVC’s reasonable expectation of privacy and his Article 8 interests in maintaining that privacy far outweighed EWF’s Article 10 rights. EWF did not, therefore, have a real prospect of success in resisting the claim at trial. His defence to the privacy claim was not even arguable.

EWF also argued that the court did not have jurisdiction because no harmful event under Article 5(3) of the 2007 Lugano Convention had occurred in England and Wales as neither party was in England or Wales at the time and no third party had accessed the website in England or Wales (or elsewhere) before it was taken down prior to the court proceedings. EWF also said that there was no threat to re-publish the information (although he offered no undertaking) and that BVC’s centre of interest was not England or Wales.

Referring to Bolagsupplysningen OÜ v Svensk Handel AB [2018] QB 963, concerning jurisdiction under the Recast Brussels Regulation (1215/2012/EU) and in which the Grand Chamber developed the “centre of interests” doctrine stated in eDate Advertising GmbH v X [2012] QB 654, HHJ Parkes noted that where a claimant seeks an injunction to rectify or remove damaging material from the internet, he/she can only do so in the state where the defendant is domiciled or in the state where he has his centre of interests, and not in each state in which the information is accessible. In this case, it was established that BVC’s centre of interest was England and Wales, despite him living and working in South East Asia at the time. Therefore, the court did have jurisdiction.

Accordingly, HHJ Parkes granted summary judgment for a final injunction to restrain EWF from further misuse of BVC’s private information.

As for the harassment claim, HHJ Parkes found that the emails from EWF to BVC were highly threatening in tone. Further, it was wholly credible that both the emails and the website had caused BVC enormous anxiety and distress. BVC had therefore established a very strong prima facie case of harassment.

However, HHJ Parkes said that EWF’s challenge to jurisdiction had considerable force in the context of the tort of harassment as BVC was outside the jurisdiction of England and Wales at all times. Under the Rome II Regulation (864/2007/EC), which applies to non-contractual obligations, including harassment claims, but not to violations of privacy, the applicable law is the law of the country in which the damage has occurred, irrespective of the country in which the event giving rise to the damage occurrs. In this case, this was the country in South East Asia. EWF argued that this country did not have statutory provisions equivalent to the Protection from Harassment Act 1997. HHJ Parkes did not know whether this was right or not, but it meant that EWF had a real prospect of successfully defending the harassment claim. Accordingly, summary judgment was refused on this part of the claim. (BVC v EWF [2019] EWHV 2506 (QB) (26 September 2019) — to read the judgment in full, click here).