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Privacy and blackmail

10 January 2011. Published by Keith Mathieson, Partner

Those seeking to profit from making unauthorised disclosures of private information sometimes resort to blackmail, seeking to extort money from those who would prefer to keep the information private.

It is clear from a number of recent decisions that the courts will go to considerable lengths to protect alleged victims of blackmail.  First, the usual requirement to give notice of an intended application for an injunction is likely to be relaxed where there exists credible evidence that the respondent has been attempting to blackmail the claimant: this is discussed at xx.  Second, the courts are likely to confer anonymity on the parties in such cases: see ASG v GSA, DFT v TFD, AMM v HXW and KJH v HGF.  Third, the courts are likely to impose strict requirements on the extent to which any such cases may be reported, though they will probably stop short of imposing a super-injunction that prevents the existence of the proceedings themselves being revealed.

The courts have also made it clear that the Article 10 rights of someone reasonably suspected of blackmail will be given little weight if indeed they are engaged in the first place.  In DFT v TFD Sharp J said:

As to the Article 10 rights of the respondent, the evidence before me currently suggests the applicant is likely to establish at trial that disclosure of the information (whether to the media or generally) would be the fulfilment of a blackmailing threat.  I accept [the applicant's] submission that the expression rights of blackmailers are extremely weak (if they are engaged at all). [para 23]

The judgment of Tugendhat J in AMM v HXW contains at paras [23] to [43] a useful exploration of the issues raised by blackmail threats in the context of applications for injunctions in privacy cases.

See further section 3.3 of the Privacy Law Handbook