A M P v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | THE HON. MR. JUSTICE RAMSEY,Mr Justice Ramsey |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWHC 3454 (TCC) |
| Docket Number | Case No: 11-497 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 20 December 2011 |
[2011] EWHC 3454 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Ramsey
Case No: 11-497
Matthew Richardson and James Williams (instructed by Griffin Law) for the Claimant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Hearing dates: 8 &19 December 2011
Introduction
This is an application for an interim injunction to prevent transmission, storage and indexing of any part or parts of certain photographic images which are claimed to belong to the Claimant.
On 30 November 2011 I heard an application under CPR 39.2(4) for the Claimant to be given anonymity in these proceedings. I heard that application in private under CPR 39.2(3) on the basis that publicity would defeat the object of the hearing ( CPR 39.2(3)(a)) because the purpose of that hearing was to determine whether the Claimant should be given anonymity. The hearing also involved confidential information and I considered that publicity would damage that confidentiality ( CPR 39.2(3)(c)). The information provided the name and other personal information in respect of the Claimant which were sought to be kept confidential by the anonymity order. I also considered that the hearing should be held in private in the interests of Justice in dealing with the application for anonymity ( CPR 39.2(3)(g)).
In determining whether or not to make an anonymity order under CPR 39.2(4) I had to consider whether non-disclosure of the identity of the Claimant was necessary in order to protect the interests of that Claimant. In considering whether to grant an interim injunction in relation to the photographic images I have also had to consider some of the matters which I dealt with when granting the anonymity order. It is therefore convenient now to set out both my decision on whether to grant an interim injunction and also to deal with the anonymity order which I previously made.
Background
Evidence which sets out the background has been submitted on behalf of the
Claimant. Whilst at University in June 2008 her mobile phone was stolen or lost. It did not have a user password lock activated. The police were notified and the phone was reported as stolen.
The phone contained digital images of the Claimant which had been taken in or about August 2007 using the digital camera on that phone. These digital images included images of an explicit sexual nature which were taken for the personal use of her boyfriend at the time. The Claimant is alone in the photos and her face is clearly visible. The phone also contained other digital images of her family and friends.
Shortly after the loss or theft of her phone, the digital images were uploaded to a free online media hosting service that is used to upload and share images. The Claimant was informed by strangers on Facebook that the images had been uploaded and that her name and Facebook profile had been attached to them. She accordingly contacted the online media hosting service and the images were removed promptly in about August 2008. In about July 2008 the Claimant was contacted on Facebook by someone who stated their name was Nils Henrik-Derimot. That person threatened to expose her identity and to post the images widely online and tell her friends about the images if she did not add him as a friend on Facebook. She deleted these Facebook messages and blocked the sender.
At about the same time her father's business public relations team were contacted and allegedly threatened and blackmailed about some images but it was not specified that the images were of her.
On 2 November 2008 the images were uploaded to a Swedish website that hosts files known as "BitTorrent" files. The images have since been downloaded an unknown number of times by persons unknown. The images have been uploaded so that her name is appended to each of the images and can therefore readily be searched for when using online search engines. This has led to the link to the BitTorrent files being at the top of the list of search engine searches for her name. Her Solicitors have been able to have many of these links removed from those search engines using the Digital Millennium Copyright Act in the United States. By these proceedings the Claimant wishes to prevent the spread and indexing of the image files by preventing their storage and transmission within this jurisdiction.
BitTorrent technology
These proceedings have been brought in the Technology and Construction Court because the use of BitTorrent technology raises complex technical issues. The Claimant relies on witness statements dated 7 and 18 December 2011 from Professor Andrew Murray, a Professor of Law at the London School of Economics who has a special research interest in information technology law and cyber regulation. He provides an explanation of the concept of BitTorrents and what remedy might be appropriate to avoid further transmission, storage and indexing of any part or parts of the digital photographic images which the Claimant seeks to protect by these proceedings.
BitTorrent is a peer to peer file sharing protocol used for distributing large amounts of data over the internet. The BitTorrent protocol is used to download files quickly by reducing the server and network impact of distributing large files. Rather than downloading a file from a single source server, as is the case with the conventional HyperText Transfer Protocol (HTTP), the BitTorrent protocol allows users to join a "swarm" of users to download and upload from each other simultaneously.
The person who wants to upload a file using the BitTorrent protocol creates a descriptor file known as a ".torrent" file which contains a description of the file. In this case that descriptor file contained the Claimant's name. This ".torrent" file is distributed by conventional means using webpages, emails or mobile phones. The file being distributed is divided into segments called pieces.
The person downloading files must first download BitTorrent client software.
That person can then download a file with a ".torrent" file descriptor. That ".torrent" file is then downloaded by acting as a "leecher" but when a piece of a file is downloaded that user then becomes, in turn, an uploader or "seeder" of that piece of the file. In this way the distribution of files depends not just on the original source of the file, as in conventional protocols, but using BitTorrent client software each user who downloads the file becomes, in turn, a seeder facilitating the distribution of a particular file by allowing pieces of that file to be uploaded by other users downloading the file.
Conventionally, to prevent users from being able to download files, it would be possible to identify the relevant source used to provide the download and seek to prevent downloads from that site.
However, to prevent the transmission, storage and indexing of the relevant ".torrent" files it is necessary to identify the users who have downloaded the files using the BitTorrent protocol. The relevant files can then be deleted by these users and, in addition, these users can be prevented from acting as seeders of parts of the file which will prevent them distributing the images which are the subject of the current claim.
Professor Murray says that each seeder can be identified by way of their Internet Protocol Address ("IP Address") while they are seeding. He says that it would therefore be possible to obtain the IP Address of every seeder in the swarm and identify from that address their physical location, name and address from their Internet Service Provider. He says that, as a result of that action, it would be possible to identify the IP address of each computer seeding a particular ".torrent" file and details of the person allowing the seeding to take place. They could therefore be served with an order requiring them to take steps to stop their account from being used.
Professor Murray considers that, given the characteristics of the Claimant, it is unlikely that many of the seeders will be outside the jurisdiction of this Court. He says that, in those circumstances, it is likely that if a large number of the seeders can be found the distribution of the ".torrent" file by the BitTorrent protocol would cease to occur because of the want of seeders.
He says it is also possible to prevent internet search engines from indexing particular sites or files which contain specific words; in this case the descriptor file containing the Claimant's name could be filtered out on that basis. He says that this would then prevent wide-scale access to the ".torrent" file and again because of a lack of seeders the distribution by the BitTorrent protocol would cease to occur.
Finally he says that although the ".torrent" descriptor files are likely to be hosted outside the jurisdiction it is a relatively trivial matter for an internet service provider to block access to a site outside the jurisdiction using currently available technology.
The defendants
The claim in this case has been brought against "Persons Unknown". The reason for that is that until seeders of the relevant digital photographic image files have been identified by way of their IP Addresses whilst they are seeding and their addresses have been obtained from their Internet Service Provider, they cannot be made a party to these proceedings. It is submitted on behalf of the Claimant that the number of potential Defendants and the need to move rapidly to prevent increasing numbers of seeders...
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