Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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The High Court of Justice, Queen’s Bench Division granted an interim non-disclosure order in favour of the claimant who had filed an application to restrain the defendants from publishing any information private or otherwise detrimental to her privacy and to take down a video already uploaded on the internet. The second defendant had disclosed information on the sexual relationship between the claimant and the first defendant, and was threatening to reveal more intimate details.The Court initially conducted the hearing in private without giving notice to the defendants to minimise the risk of publication of the private information but later provided a judgment in open Court elaborating on the reasoning for its findings. The Court granted the injunction as requested on the basis that the claimant was successful in establishing that she had a reasonable expectation of privacy, that there was a probability of her succeeding in the trial, and that there was no public interest involved in the material which was the subject of the application.
The second defendant had disclosed information on the sexual relationship between the claimant and the first defendant and was threatening to reveal more intimate details about the same. The claimant based her cause of action on the potential breaches of her rights of privacy under Article 8 of the European Convention of Human Rights and harassment contrary to section 1(1) Protection from Harassment Act 1997. [para 3]
It was argued on behalf of the claimant that she had a reasonable expectation of privacy and that she hadn’t given permission for publication of the said material. The Court, in terms of Article 12(2)(b) of the Human Rights Act, 1998, found that issuance of notice to the other party on the application would have resulted in the disclosure of the information for which the application was filed and therefore the proceedings were decided ex parte and with the identities of the parties kept anonymous. [para 7] The risk of disclosure was evident by the records of recent threats made by the second defendant to publish the information and the fact that it was in fact disclosed to at least one person.
In the circumstances the Court granted an injunction on February 26, 2021 which sought to protect the nature and details of the relationship, private communication between the parties concerned, photographs and other images of the claimant taken without her religious attire, and any information that would lead to the identification of the claimant. However, this excluded any information already in or which subsequently came out in the public domain, other than as a result of the breach of the order. [para 4]
Subsequent to the order dated February 26, 2021 which provided for an injunction operative until the return date of the application notice on March 8, 2021, [para 9], the Court handed down a judgment in open court on March 3, 2021 which provided a brief public account of the Court’s conclusions. [para 2]
The judgment was rendered by Mr. Justice Morris. The Court was concerned with the balancing exercise of two competing rights – privacy under Article 8 of ECHR and freedom of expression under Article 10 ECHR.
Foraying into the task, the Court stated that neither article exercises precedence over the other. Therefore, there was a need to focus on the comparative importance of rights in the particular case as well as the justification of interfering has to be set out, and accordingly the ‘proportionality test’ is to be applied. [Para 10.3] However, for the grant of injunction in such ‘ultimate balancing test’, the conditions of Article 12(3) have to stand fulfilled by the Claimant.
Article 12(3) provides for a pre-trial injunction if it is proved to the satisfaction of the Court that the Claimant has a case that she will succeed in the trial in establishing that the circumstances did warrant the restriction of the publication. The Court employed the standard set out in the case of Cream Holdings Ltd v Banerjee  1 AC 253, where the degree of likelihood of success was changed from ‘probably succeed at trial’ to a lower standard of ‘more likely than not’. This was to be followed when there were either potential adverse consequences of disclosure or where there was a pressing need for a short-lived injunction to enable the court to hear and give proper consideration to an application for interim relief pending trial. [Para 10.1]
The application of the above mentioned legal standards to the present case revealed that the Claimant was likely to succeed in the trial. [para 11] Acknowledging the application of the lower standard of the degree of likelihood as provided in the Cream Holdings Ltd judgment to the case, and due to the imminent threat of publication together with the evidence that was tendered, the Court held that the Claimant had a reasonable expectation of privacy. Further, having considered the arguments that might have been advanced by the defendants, the Court concluded that at the present stage of the proceedings the balance falls to be struck in favour of the protection of the Article 8 rights of the Claimant. [para 12] Therefore, the Court granted the interim injunction at the terms sought by the Claimant. [para 13]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case at its fulcrum had to balance two inalienable rights – privacy and freedom of expression. While the Court did decide in favour of protecting the privacy of the claimant, its application was limited to the present case because the “ultimate balancing test” which is applied in such matters is case specific. As the content at issue was the non-consensual dissemination of intimate images, there was no public interest at stake, and a removal of the impugned video was considered proportionate. This results in a mixed outcome as can be seen in other previous decisions.
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