New Approach to Privacy: AMP v Persons Unknown

I mentioned on Twitter last week that I was involved in a potentially ground breaking court case but that I couldn't say any more. Well the judgement came out this morning. The case is AMP v Person's Unknown [2011] EWHC 3454 (TCC) and the impact it may have is far reaching in terms of an alternative to orders being sought against essentially unregulatable (for the UK courts) offline platforms such as Twitter or Facebook (see entries passim on CTB v Twitter such as this one or my evidence to the Select Committee on Privacy and Injunctions.  

The reporting of AMP has to be done carefully as there is a Contra Mundum order in effect (for very good reason) so I will restrict myself to only those things said in the judgement and those things which are clearly not subject to the order.  Firstly all credit for the innovative order passed down today rests with the excellent and always innovative Matthew Richardson who made headlines two years ago with his innovative approach to online impersonation via Twitter - the so called Blaney Blarney Order (see here and here). I suspect the AMP order may have the same impact and provides a new approach to the regulation of online content for individuals and companies by applying Chris Reed's "Internet Fallacy" argument to a practical situation. This is people are people wherever they are and people may be regulated and controlled by the courts of the jurisdiction they are in. 

What happened and how was the order won? Well as I said I have to remain within the judgement given the wider Contra Mundum order. Essentially AMP either lost or had her mobile phone stolen (it was reported as stolen with the police) and with it sexually explicit images of the claimant - although the judgement is not clear we can assume she was "sexting" her boyfriend. It is clear that (a) AMP owned the copyright in these images and (b) they were private images obtained illegally via the theft. Soon thereafter the images appeared on a Dutch file hosting site for a short period but were removed from there at the request of the claimant but not before the images had been downloaded by others. As the judgement makes clear a number of blackmail demands followed, possibly from the same person. 

The images then found their way onto a BitTorrent site and a three year legal battle was begun to essentially block the sharing of the BitTorrent content. This is where Matthew and then later I (in a very minor role) became involved. Everyone knows BitTorrent content is unregulatable, or at least that is the orthodoxy, Matthew though came up with a novel approach. You cannot ask Torrent Trackers or the providers of Torrent Clients to block as they essentially cannot do so due to the nature of BitTorrent. What you can do though is prevent people from seeding Torrents if they are within the jurisdiction of the Court. Matthew surmised (and I agreed) that as AMP is not a celebrity (or in any way famous) anyone sharing the images was likely to know her personally either from her circle of acquaintances at home (ex school colleagues etc) or from University. These people would be based in the UK (England & Wales) and would be the key to seeding the Torrent. Take out the key Seeders and the Torrent would pretty much wither on the vine. 

What Matthew needed to do was to convince the Court to award an order that he could serve on anyone seeding the Torrent. As most of them would be located within the jurisdiction of the Court it would be effective. He developed a number of claims including claims under the Copyright, Designs and Patents Act 1988 but essentially it came down to two claims: (1) Privacy under Article 8 of the ECHR and (2) Protection from Harassment. The stronger claim was under the Protection from Harassment Act 1997 as an infringement of a harassment order is a criminal offence. The full judgement is available below but to cut a long story short Ramsay J. agreed that the actions of the Seeders was harassment and made an order under s.3 of the 1997 Act.  A breach of this order is an offence under s.3(6)(b). 

Matthew will now no doubt go about serving this order on anyone who seeds the files in question. This may involve a Norwich Pharmacol application but assuming we are right in our earlier assumption that overwhelmingly seeders will know AMP and are therefore within the jurisdiction of the Court we expect seeders to quickly stop sharing once the nature of the order is made known to them. Hopefully AMPs lack of celebrity means this will not lead to any kind of Streisand Effect - in fact this is not a free speech issue in any way the images were private and were stolen.      

Thus content on BitTorrent may just be regulatable after all. Although we accept this is a very unusual case and its wider application may be limited. 

The judgement is available here.

UPDATE - Just spoke to Matthew and applications for third party identities will be done under CPR 31.17 not Norwich Pharmacol. This is quicker, easier and cheaper. Also Matthew pointed out that the seeders do not have to be based within England & Wales to be brought under the jurisdiction of the order - thanks to a European Arrest Warrant anyone within the EU is bound by the order.