On 28 September 2016, Mrs Justice Whipple continued an injunction preventing “person(s) unknown” from using material obtained from Pippa Middleton’s iCloud account (Middleton and another v Person or Persons Unknown).
The Sun reported that they had alerted Ms Middleton to the hack after being contacted by an anonymous individual who purported to have 3,000 images from Ms Middleton’s phone and who had demanded £50,000 within 48 hours for images and data from her iCloud account.
Ms Middleton and her fiancé had originally been granted the injunction on an urgent ex parte basis out of court hours on 24 September. The hearing on 28 September was the return date for that injunction during which the claimants’ counsel Adam Wolanski sought to continue the injunction and to broaden its terms, which had originally been limited to photographs obtained from Ms Middleton’s iCloud account, to encompass “any other information which is derived from, or which there are grounds to suspect may derive from, the iCloud account of” Ms Middleton.
In doing so, the claimants argued that the actions taken by person(s) unknown in hacking and obtaining Ms Middleton’s personal photographs and offering them to the press for sale entailed a misuse of private information, breach of confidence, copyright infringement and breaches of the Data Protection Act 1998.
Mrs Justice Whipple’s approach to the application was guided by section 12 of the Human Rights Act 1998 (the “HRA”) and in deciding to grant the injunction, she considered the following points:
- Section 12(2) of the HRA requires that the court be satisfied “that the applicant has taken all practicable steps to notify the respondent; or that there are compelling reasons why the respondent should not be notified” before granting an injunction that might affect freedom of expression. Mr Nathan Wyatt had been arrested on suspicion of hacking into Ms Middleton’s iCloud account (although it was not yet wholly clear who was responsible for the hack and the identity of those responsible remained unknown). He was the only person who had been formally notified of the application and was represented in court. In the circumstances, Mrs Justice Whipple considered this to be adequate for meeting the statutory notification requirement.
- Mrs Justice Whipple was also satisfied that it was proper to issue the application and make an order against “person(s) unknown” on the principles established in Bloomsbury Publishing Group plc v News Group Newspapers Limited  EWHC 1205 (Ch).
- Section 12(3) of the HRA states that “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed“. The judge considered this threshold to be met on the basis that the hacking was an “appalling intrusion into the claimants’ private life” and that the claimants would be likely to establish at trial that publication of the photographs should not be allowed.
- Section 12(4) of the HRA requires the court to have “particular regard” to freedom of expression when considering whether to grant an injunction that may affect its exercise and, in the case of journalistic material, to also consider any relevant privacy code and the extent to which the material has, or is about to, become available to the public or the extent to which there would be public interest in its publication. Mrs Justice Whipple made it clear she had considered each of these elements in coming to her decision to grant the injunction and referred to: (a) the fact that the material obtained from the iCloud account did not have any genuine public interest attached to it; (b) that none of the information was available, or about to become available to the public; and (c) the fact that the Editors’ Code of Practice entitles everyone to a private life, which was applicable to the circumstances of this case.
The legal outcome of this application is not particularly surprising given the strong prima facie claims against person(s) unknown in respect of the underlying facts. It is noteworthy that the joint approach of police and civil action appears to have been effective in preventing the dissemination of material from Ms Middleton’s iCloud account. This can often be extremely challenging when dealing with an unknown person who is taking technical steps to conceal their identity.