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2.01.17

Claimants obtain interim injunction preventing disclosure of extramarital affair

In TRK & BVP v ICM [2016] EWHC 2810 Mr Justice Warby granted an interim without notice injunction preventing a spurned lover from disclosing private information obtained from the alleged hacking of his former lover's computer system.

Background

As the hearing was ex parte (i.e. made without notice to the Defendant), the judge was reliant solely on evidence advanced by the Claimants - although he remarked that the facts alleged appeared to be supported by documentation.

The First Claimant TRK is married to WRK (not a party to the claim and outside of the 'love traingle'). WRK apparently knows nothing of her husband’s infidelity with the Second Claimant BVP, an unmarried woman. This extramarital affair initially lasted only a few months, ending in July 2016.  Shortly after the affair ended, BVP started a new relationship with the Defendant ICM.

In September 2017 BVP rekindled her relationship with TRK, dating both men simultaneously for a time.  In late October 2016, ICM became suspicious that she was seeing someone else.  It was at this point that ICM proceeded to uncover the truth, albeit allegedly through the unlawful hacking of BVP’s Microsoft email account.

On 30 October 2016, TRK received an email from ICM at work threatening to expose his infidelity with BVP to his wife. This ultimately led to TRK and BVP seeking injunctive relief to restrain ICM from disclosing this private information.  Having obtained the information through hacking, ICM was said to be wrongfully using and threatening to disclose such information.  It was submitted that this amounted to a misuse of private information and harassment.

Issues

There were three main concerns for Warby J.  Firstly, was there a justified reason for hearing the application without notice to the defendant?  Secondly, was the defendant, unless restrained, likely to continue to harass the claimant’s and disclose the information to TRK’s wife?  And lastly, was a court likely at trial to find that the claimants were entitled to an order restraining the behaviour of the defendant? Warby J said that the answer to each of these three questions was yes.  Giving notice to the Defendant of the application risked him carrying out the threat.  Whilst the Defendant had indicated to the TRK that he had now 'moved on', he had previously withdrawn threats only to subsequently reinstate them.  Finally, he was persuaded a court was likely to grant an injunction following trial.

Basis for decision

The key paragraphs of the judgment are set out below:-

"17. TRK maintains that it is his right to decide whether and if so when and how to disclose his infidelity to WRK. It is certainly true that Article 8 confers rights of autonomy on an individual; rights to decide who gets to know what about the person's private life, when, and by what means. But these rights are not unqualified, and do not exist in a vacuum. It would be hard to see any justification for a disclosure to the public. It may be less obvious that a more limited disclosure would be wrongful. The wife has her own rights under Articles 8 and 10, and so does ICM. The court is required to strike an appropriate balance between these competing rights.

18. A person who finds out that a married individual has been unfaithful to his or her spouse may, in some circumstances, have every right to inform the wronged spouse, who may have a right to know that information. If the person came by the information by observing behaviour in a public place, for instance, the court might be reluctant to intervene to prohibit disclosure. It might make a difference if the person acted out of disinterested concern for the well-being of the ignorant spouse. Other factors might weigh against the grant of an injunction.

19. But it is improbable that the court would consider it legitimate to disclose the details of the unfaithful spouse's correspondence. Still less if access to that correspondence was only gained surreptitiously, without consent. Moreover, on the evidence before the court in this case at the present time, ICM only confirmed the fact of the relationship between BVP and TRK by gaining access to the email account of BVP. It is only via such unauthorised access that he came to know the identity of TRK, the identity of WRK, and the contact details of those two.

20. I do not say it is inevitable but at present it appears highly likely that the court would find that such access was unauthorised and wrongful. There is some suggestion in the correspondence that ICM had been provided with BVP's password, but even if that was accepted it seems unlikely she would be found to have authorised his access to her private emails. The fact that BVP was "two-timing" ICM would not seem to provide a justification for "hacking". ICM's most recent email would suggest that he now acknowledges that his access was wrongful.

21. If that is right, then all the conduct complained of by these claimants flows from an unauthorised, wrongful act of "hacking" by ICM. To allow disclosure, or the continued use of that wrongfully acquired information to harass the claimants with threats of disclosure, would be to permit ICM to use such wrongdoing as a springboard. Other factors which I have taken into account are (a) the fact that on the face of it ICM's purpose in making disclosure, or threatening disclosure, appear to be more vengeful than altruistic; he writes of the best interests of WRK, but it is the ventilation of his anger at what has been done to him that seems to be uppermost in his mind; (b) I know relatively little about WRK, or the relationship between TRK and WRK, and its future prospects."

Comment

Given the Court's attitude to hacking, Warby J's decision is unsurprising.  Had ICM's knowledge of the affair been obtained by legitimate means (e.g. by seeing TRK and BVP in public), then it may be that the outcome would have been different - provided of course the conduct did not also amount to harassment.

Click here if your privacy has been breached or here if you are being harassed to find out how Brett Wilson LLP privacy and harassment solicitors can assist you.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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