On 24 September 2019, the High Court continued an anonymity order and granted an interim injunction in favour of a well-known, billionaire businessman to prevent the disclosure and publication of his personal information by a woman with whom he had had a sexual relationship. The judgment is a reminder that the Court will not assist or encourage blackmail.

 

Facts of the Case

Mr “J” had a relationship with Mrs “O” between late 2017 and early 2018, following which Mrs O alleged that Mr J had infected her with two sexually transmitted diseases. Mr J denied this and offered to exchange medical information with Mrs O. Mrs O refused and in return for keeping the relationship and the alleged transmission of sexual diseases a secret, demanded (through her lawyers) US$2.5m. Negotiations ensued and in August 2018, the parties signed a settlement agreement under which Mrs O would be paid US$1.5 million for her silence.

In April 2019, Mr J received evidence that Mrs O had breached the confidentiality terms of the agreement. Mrs O agreed to submit her phone to Mr J’s lawyers for forensic examination but subsequently alleged that the searches of her phone undertaken were “wildly improper” and had breached her rights under the GDPR.

 

Judgment

Assessing the balance between the claimant’s right to privacy and the defendant’s right to freedom of expression, Mr Justice Pepperall stated that:

  1. there was no public interest in publishing details of the affair;
  2. the settlement agreement had been entered into freely, on legal advice and for a significant sum of money;
  3. it is unlikely that Mrs O has a claim under the GDPR; and
  4. there was credible evidence that Mrs O had breached the agreement and would do so again.

Significantly, Mr Justice Pepperall also stated that Mr J had a credible case that he was being blackmailed. Under section 21(1) of the Theft Act 1968, a person is guilty of blackmail if “with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces”. The “menaces” in a privacy or confidentiality case are likely to be threats of publication.

In this case, the Judge noted that:

  1. Mr J’s denial that he infected Mrs O “gains some support” from his willingness to exchange medical information and if there is no truth in the infection allegation then there would be no reasonable grounds for her demand to be paid $2.5 million; but
  2. even if Mr J had infected her, such a demand would be “most unlikely” to be warranted in any action brought in this jurisdiction.

In making his judgment, Mr Justice Pepperall quoted Mr Justice Warby in LJY v Persons Unknown EWHC 3230 (QB):

“Generally, the court has taken the view that blackmail represents a misuse of free speech rights. Such conduct will considerably reduce the weight attached to free speech, and correspondingly increase the weight of the arguments in favour of restraint. The court recognises the need to ensure that it does not encourage or help blackmailers, or deter victims of blackmail from seeking justice before the court. All these points are well-recognised … It can properly be said that the grant of a privacy injunction to block a blackmail serves the additional legitimate aim of preventing crime.”

 


 

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