Emily Cox, a partner in our Media Disputes department, considers an application for an interim injunction which has been granted in XLD v KZL, a case of alleged blackmail. Although blackmail is a crime, Mr Justice Nicol granted the interim injunction in the High Court on the civil bases of harassment and misuse of private information.

The claimant is a US citizen working in the financial services and entertainment industries, who sometimes makes trips to the UK. He is married and has a child. He met the defendant on a dating website which sought to bring together a ‘sugar daddy’ and a ‘sugar baby’. They went on to exchange sexually explicit messages over WhatsApp and email. Shortly after the messaging began, the defendant made her first financial demand in May 2019. This was followed by further demands for payment, supported by threats to tell the claimant’s family about his activities. Between 25 May 2019 and 14 April 2020, the claimant paid a total of £125,000 to the defendant.

The claimant believes the defendant lives near Manchester, England. He instructed a private investigator, who found what was thought to be the defendant’s true name. The private investigator reported that on 24 occasions IP addresses connected with her had been blacklisted because it was thought blackmail demands had been made from them.

Having heard the application for an injunction in private on 11 June 2020, Mr Justice Nicol gave a public judgment on 17 June 2020. This was made possible by the anonymisation of the parties’ names, and desirable from an open justice perspective. He granted the claimant’s application based on harassment and misuse of private information and made the following findings:

1.Strength of case. There was a strong prima facie case that the defendant had been blackmailing the claimant.

 2. Anonymity. It was necessary to anonymise both parties’ names, as otherwise, the process intended to protect the victim would become the means of giving publicity to that which the blackmailer was threatening to reveal.

3. Without notice. The interim injunction was granted without notice to the defendant (who was, therefore, not present). This was due to the risk that she would, if given notice, do what she had threatened to do and disclose to the claimant’s family his use of the website and other private information.

4. Misuse of private information. The claimant was likely to succeed at trial in establishing that he had a reasonable expectation of privacy in respect of four categories of information, namely:

    1. the fact of his visit to the dating website and attempt to use its services;
    2. that he had communicated with the defendant and the content of their exchanges;
    3. that their communications included sexually explicit WhatsApp messages and content; and
    4. that the claimant is a victim of blackmail.

Sexual activities were a classic example of information in which there was a reasonable expectation of privacy under Article 8 (right to private and family life) of the European Convention on Human Rights. As to any competing Article 10 (freedom of expression) right, the claimant was likely to establish that the balance came down firmly in his favour.

5.Harassment. The elements for the tort of harassment, including a course of conduct, were also all present. Blackmail was a criminal offence, but the Protection from Harassment Act 1997 allows civil remedies including an injunction. The evidence that a crime had been committed was supportive of the claimant’s claim in harassment.

As part of the duty of full and frank disclosure in a without notice application, the claimant’s lawyers raised jurisdictional points that the defendant may have wished to ventilate. Mr Justice Nicol noted that despite the fact that the claimant was a US citizen and domiciled there, the Recast Brussels Regulation Article 7 gives the UK courts jurisdiction if the defendant is domiciled in the jurisdiction. Similarly, any suggestion that the law of England and Wales should not apply would not be determinative, as any foreign law should yield the same result as English law.

Mr Justice Nicol granted the interim injunction until a return date when the defendant will have the opportunity to oppose its continuation.

The case confirms, once again, the High Court’s readiness to consider criminal blackmail cases and how the civil causes of action of harassment and misuse of private information are being used creatively in support of such blackmail cases. Added to which, the domicile of the claimant remains no impediment to a claim in the courts of England and Wales, so long as the blackmailer is domiciled in this jurisdiction.

 


 

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