XLD v KZL: Nichol J grants injunction based on harassment and misuse of private information in blackmail case

The granting of an interim injunction to the claimant in the recent case of XLD v KZL [2020] EWHC 1558 (QB) (17 June 2020) illustrates how the civil causes of action of harassment and misuse of private information can be applied in a case of alleged blackmail.

Facts

The claimant was a married US citizen who met the defendant, a woman living in the UK, through an online dating website for ‘Sugar Daddies’. The purpose of the website was to match ‘Sugar Daddies’ with other individuals called ‘Sugar Babies’ who generally offer some form of companionship in exchange for gifts or payment of their expenses by the ‘Sugar Daddy’.

Shortly after meeting through the website, the claimant and defendant began exchanging sexually explicit messages via Whatsapp. The defendant then began to demand money from the claimant in return for not revealing the claimant’s use of the website and the explicit messages to the claimant’s family. In total the claimant paid £125,000 to the defendant.

The claimant applied to the court for an interim injunction without notice, on the basis that if the defendant was made aware of the injunction there was a risk that she would follow through on the threats and disclose his private information. Nichol J agreed that this risk was enhanced by recent evidence of the defendant’s growing impatience and chasing of the claimant for further payment. The judge also relied on evidence produced by the claimant’s private investigator which showed that on twenty-four previous occasions IP addresses connected with the defendant had been blacklisted because it was thought that blackmail demands had been made from those addresses.

Misuse of private information

In assessing a claim for misuse of private information the court will: (1) assess whether the information is information in which the claimant had a reasonable expectation of privacy; and (2) carry out a balancing exercise to consider the rights to be balanced against the claimant’s right to respect for his private life under Art 8 ECHR. In considering the first stage in this case, Nichol J followed the judgment in PJS, holding that there was a reasonable expectation of privacy in sexual activities. In considering the second stage, Nichol J held that it was likely that the claimant would establish that the balance came down firmly in the claimant’s favour, particularly as there is a strong prima facie case of blackmail.

Harassment

Under the Protection from Harassment Act 1997, harassment is a criminal offence but it can also attract civil remedies, including an injunction. In this case Nichol J held that all of the elements of harassment, including a course of conduct, had been made out and that the evidence of blackmail (a criminal offence under s.21 Theft Act 1968) was supportive of the claimant’s claim in harassment.

The outcome of this case illustrates the possible privacy based civil remedies available to a claimant who has been the subject of blackmail.