In the case of Middleton & Anor v Person Or Persons Unknown  EWHC 2354 (QB) Pippa Middleton, the sister of the Duchess of Cambridge, successfully sought the continuation of an interim privacy injunction and the expansion of its terms against person(s) unknown.
It is understood that more than 3,000 photographs featuring Ms Middleton, members of her family and friends were stolen when her iCloud account was illegally accessed by an unknown third party. Some images were said to have included the Duke and Duchess of Cambridge and their two young children, Prince George and Princess Charlotte. The matter came to the claimants’ attention, when The Sun newspaper contacted Ms Middleton’s representatives to inform them that they had been offered material for sale.
On 24 September 2016 Ms Middleton and her fiancé James Matthews were granted an urgent injunction in the High Court by Mr Justice Dove preventing publication of photographs stolen from her iCloud account. The Court heard that Ms Middleton had been caused “considerable distress” as a consequence of the alleged theft of material from her iCloud account. Mr Justice Whipple presided over the return date of the hearing on 28 September 2016, where the claimants sought to broaden the terms of the injunction, to encompass not only photographs, but “any other information” which may have been accessed unlawfully from her iCloud account. Her barrister Adam Wolanski argued that there had been a misuse of private information, a breach of confidence, infringement of copyright and a breach of statutory obligations owed under the Data Protection Act 1998.
The Defendant is said to have accessed material on Ms Middleton’s iCloud account without authorisation and offered photographs to the press whilst seeking to maintain their anonymity (by contacting The Sun in a manner designed to be untraceable).
Police have arrested one man on suspicion of accessing Miss Middleton’s iCloud account without authorisation, Mr Nathan Wyatt. Whilst Mr Wyatt was represented in court before Whipple J, he has not been named as a defendant in the proceedings.
Whipple J considered section 12(2) of the Human Rights Act 1998 (‘HRA’) and was satisfied that all reasonable steps had been taken to notify the respondent of the hearing. Mr Wyatt was the only person formally notified of the hearing; the identity of the defendant(s) remained unknown and therefore notification was not possible.
Taking into consideration the case of Bloomsbury Publishing Group plc v New Group Newspapers Ltd  1 WLR 1633, Whipple J believed it appropriate to make an order against person(s) unknown. The application notice and order described the person(s) as those “who has or have appropriated, obtained and/or offered to intend to offer for sale and/or publication images contained on the First Claimant’s iCloud account”. This description was sufficiently certain to identify the defendant(s).
Under section 12(3) of the HRA before granting an interim injunction that restrains publication, a court must be satisfied it is likely that the Claimant will establish at trial that the publication of the material should not be allowed. Whipple J stressed that it appeared on the evidence that information has been obtained from Mr Middleton’s iCloud account illegally, and if proven would constitute a criminal offence: “any use by publication or sale of the information would be misuse of private information. I need go no further”. The judge noted that in relation to section 12(4) of the HRA 1998, weighing up the Article 10 ECHR [freedom of expression] rights of the defendant(s) against the Claimants’ Article 8 ECHR [privacy] rights, that the defendant(s) may contend that the information has some journalistic value that is protected by Article 10. However, he drew the well-known distinction between information that the public is interested in and information in which there is a genuine public interest.. Whipple J additionally noted that the material was not already available to the public, nor was it going to be made available to the public in the near future. Furthermore, The Editors Code of Practice which states “Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications”. In the circumstances, the Article 8/10 balancing act weighed in favour of Ms Middleton and that the interim injunction should continue to trial or further order.
The injunction was extend to include all the material and information held on Ms Middleton’s iCloud account because she had good reason to fear that all information had been hacked, not just her photographs. Finally, the Whipple J extended time for service of the Claim Form until 28 October 2016, noting that a further application might be necessary if the defendant had not been identified by that time.
This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks.