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.

Guest Blogger Alena Shautsova: Bringing Your Family to Safety After You Have Received Asyum

I am pleased to welcome Alena Shautsova as a guest blogger on the That Lawyer Dude Blog. Alena is quite a good young lawyer. She is a leader among young lawyers in the NYS Bar Association and is the liaison from our state bar (Young Lawyers Section)YLS to the ABA's YLD(Young Lawyers Division) and she is also very active in our State bar's Special Committee on Immigration Representation Reform. She is Of Counsel to our Law Firm concentrating on International Law, Immigration and Civil Rights/Employment litigation. She is a rising star in our bar. I commend her work to you.

Can I Bring my Family to the US After I Received an Asylum Status?

A person granted asylum in the United States may bring his spouse and children (unmarried and under 21 at the time the USCIS receives the application for asylum) to the USA.

Such an application (FORM I-730) has to be filed within the two years after the grant of asylum. Failure to file within 2 years however, can be excused for humanitarian purposes.


If an asylee would like to bring his or her spouse to the US, the following conditions must be met:
An asylee must be the principle applicant: that means that he or she was the person who applied for asylum and was granted asylum. Received the asylum status though a relative does not make one eligible to bring over other family members as a Principle Applicant ;
An asylee must remain in asylee status or become a permanent resident;
An asylee was married to the spouse he or she is petitioning for before the asylee was granted asylum.

The same rules apply to spouses who live in the US, and who were not included in the application but became married to the asylum applicant before he or she received the asylum status.


If an asylee would like to bring his or her child to the US, the following conditions must be met:
An asylee must be the principle applicant: it means that he or she was the person who applied for asylum and was granted asylum, and that he or she did not received the status though a relative;
An asylee remains in asylee status or has become a permanent resident;
The child was conceived prior to the grant of asylum: (Note from That Lawyer Dude: in a rather cruel twist, the mother of the child, if not married to the asylee prior to the grant of asylum is not eligible for these benefits,she must allow the child to leave and continue to face the torture of her original nation-state. Further any children not of the aslylee must also be left behind. Maybe noone in Homeland Security has ever watched the movie "Sophie's Choice") ;
on the basis of an employment-based petition; or
A child was under 21 on the date the USCIS received application for asylum. (True for I-589 filed on or after August 6, 2002);
A child is unmarried.

And now for the Good News:

SPOUSES and CHILDREN Who Live in the United States and Were Included in the Application for Asylum:

Spouses and children who are with the applicant in the United States and were included in the applicant’s Asylum application will receive status automatically as derivatives of the main applicant.

Once again I want to thank Ms. Shautsova for her contribution and look forward to her next one. Also I encourage you to check out her blog at: