Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
In our blog Anti-social media – how the law can tackle online abuse and harassment we highlighted the difficulties faced by some victims of internet abuse who before they are able to seek any form of redress must first identify the perpetrator of such abuse, who more often than not will have tweeted under a false identity and/or using one more account.
The internet service providers have to date been fairly resistant to taking a pro-active stance in dealing with such abuse and pretty slow of the mark to remove offensive material once notified of its existence. Whilst victims are able to seek assistance from the civil courts in revealing the identity of the user by making an application for an order against a third party for the disclosure of documents or information (a Norwich Pharmacal Order), the cost of such action is likely to be prohibitive to the large majority of claimants. However, the High Court has recently taken a step in the right direction in making matters a little easier for some of these victims.
In DDF v YYZ, a harassment injunction was obtained against an unknown defendant both to prevent harassment via Instagram, an online photo-sharing and social networking service, and to restrain the threatened disclosure of private information. The victim has received a large quantity of anonymous messages via Instagram, some of which threatened to allege that he had been the perpetrator of serious sexual offences as well as making threats to disclose private information. Under the Protection from Harassment Act 1997 (“the Act”) it is a criminal and civil offence to pursue a course of conduct which causes alarm and distress, which includes the publication of words provided there have been at least two communications.
Not unsurprisingly the judge found that the actions of the unknown defendant amounted to harassment. What is unusual is that the victim’s legal representatives sought permission for proceedings to be served by an alternative method or at an alternative place (pursuant to CPR Part 6.15) and were successful in obtaining the court’s agreement to serve the harassment injunction on the anonymous online abuser via Instagram.
It is reported (the hearing was in private and judgment ex tempore) that Mr Justice Nichol J said that since the only means of alerting the unknown defendant to the existence of the proceedings was via the Instagram account through which he was contacting the victim, that it could also be used as a means of serving the proceedings. The court was persuaded that an instant screen-grab taken immediately after sending the injunction via Instagram would be sufficient to demonstrate proof of service. The use of social media, including Facebook and Twitter, to serve proceedings has previously been allowed but this is the first time that Instagram has been considered a suitable medium for service.
Whilst, DDF v YYZ is a step in the right direction for tackling anonymous abuse online, particularly for those with sufficient financial means with which to litigate, the fact remains that confronting online trolls remains a battle and stamping it out will require a joined up approach from internet service providers and the courts a like.
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