Nicole Daedone v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWHC 113 (KB) |
| Docket Number | Case No. QB-2021-004135 |
| Court | King's Bench Division |
and
[2023] EWHC 113 (KB)
THE HONOURABLE Mr Justice Pepperall
Case No. QB-2021-004135
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice, Strand, London WC2A 2LL
Aidan Wills (instructed by Mishcon de Reya) for the Claimants
Catrin Evans KC and Ben Gallop (instructed by BBC Litigation Department) for the Defendant
Kate Wilson (instructed by Simons Muirhead Burton LLP) for the Applicant
Hearing date: 20 July 2022
Judgment No. 2
Approved Judgment
This judgment was handed down remotely at 1pm on 26 January 2023 by circulation to the parties and by release to the National Archives.
Between 10 November and 16 December 2020, the BBC published an introductory episode and ten full-length episodes of a podcast entitled “The Orgasm Cult.” The series focused on the activities of OneTaste Inc. and its founder and former Chief Executive Officer, Nicole Daedone, in promoting and selling classes and programmes dedicated to the art of “Orgasmic Meditation.” By this action, it is alleged that the podcast was defamatory in that it suggested that Ms Daedone, Rachel Cherwitz and OneTaste controlled a destructive sex cult which, under the false pretence of being a wellness organisation promoting empowerment for modern women, deliberately manipulated and exploited vulnerable women causing them lifelong trauma for the purpose of making themselves wealthy. It is alleged that the podcast was defamatory in that it suggested that Ms Daedone, Ms Cherwitz and OneTaste bore responsibility for serious criminal acts including the repeated rape of a vulnerable woman, sex trafficking, and facilitating and benefiting from prostitution and violations of labour law. Further, it is said to be defamatory in asserting that allegations published by Bloomberg in 2018 were true.
FLA is not a party to these libel proceedings but has issued his own claim against the BBC (claim number QB-2022-002110). His draft Particulars of Claim allege misuse of private information and breach of data protection law. FLA says that he was a member of the OneTaste community and the man referred to as “Jake” in episode 9 of the series, which was first published on 16 December 2020. “Jake” is itself a pseudonym and the BBC chose not to reveal the man's name. FLA says that he can, however, be identified by jigsaw identification from other information included in the podcast. FLA alleges that episode 9 falsely claims that Jake raped a vulnerable woman referred to in the podcast by the pseudonym “Cassidy.”
FLA is concerned that highly private and confidential details about him might be disclosed either in the course of his own claim or in these proceedings. By an application notice dated 12 July 2022, FLA sought a non-disclosure order protecting his identity and any other details that might allow his identification. In addition, FLA sought ancillary orders that he should be allowed to issue this application in the name FLA; that his application should be heard in private; that there should be reporting restrictions; and that copies of his confidential witness statement and any other documents that might identify him should not be provided to non-parties without further order. He also sought directions as to whether his application should be heard together with his anonymity application in his own claim; the listing of his application; and the giving of notice to the media.
On considering FLA's application on the papers, I gave directions for the hearing of FLA's application on 20 July 2022 at Lincoln where I would then be sitting. I directed that the application, including the supporting evidence disclosing FLA's identity, should be served upon the media through the Injunction Applications Alerts Service. In doing so, I observed:
“It is not appropriate to limit the documents served upon the media to the redacted application notice and draft order, as sought by the Applicant. Media organisations must be able to consider the application properly in order to determine whether they wish to be heard and this is not a case that is so sensitive that the court should direct that the Applicant's name be withheld from the media. Responsible media organisations can be trusted not to defeat the object of the hearing.”
I directed that the application would be listed for hearing in public but that, in order that publicity should not defeat the object of the hearing, the Applicant's name should appear in the list as FLA and should not be disclosed save as directed through service upon the Injunction Applications Alerts Service. In so ordering I observed:
“Publicity would defeat the object of the hearing on 20 July 2022 which is to determine an application that the identity of the Applicant should not be disclosed in these proceedings. It is, however, unlikely to be necessary to sit in private since, subject to further argument, I consider that this application can be properly argued with some lesser derogation from the principle of open justice, namely by referring throughout the hearing to the Applicant as FLA and taking care not to disclose in open court any of the matters that would lead to the Applicant's identity being revealed. Accordingly, the application will be listed for hearing in public but at such hearing the Applicant or other parties or non-parties may seek a direction that the court sit in private for some or all of the hearing.”
In the event, no other party or media organisation filed evidence in response to FLA's application or appeared before me. The media interest was, of course, represented in any event by the BBC. No party renewed the application to sit in private and accordingly I heard FLA's application in public.
Subsequently, on 17 August 2022, Master McCloud ordered in FLA's own claim that:
7.1 he be given permission to issue his claim anonymously using the cipher “FLA” and giving his solicitor's address for service;
7.2 FLA's identity and any other details from which he could be identified should be withheld from the public;
7.3 no copies of the confidential schedule to his Particulars of Claim and witness statements (each of which identify FLA) should be provided to a non-party without further order;
7.4 pursuant to s.11 of the Contempt of Court Act 1981, publication of FLA's name and any other details from which he could be identified should be prohibited; and
7.5 any non-party seeking access to or copies of the confidential schedule to his Particulars of Claim or witness statement must make an application to the court on proper notice.
THE APPLICATION
FLA has not been named in this claim. At paragraph 34.1 of the Particulars of Claim, the claimants plead their case as to the alleged natural and ordinary meaning of episode 9. Such meaning includes, among other matters, that the claimants were responsible for the repeated rape of an unnamed young vulnerable woman by her unnamed boyfriend and unnamed others. At paragraphs 52.5(c) and 57.2(p) of the Particulars of Claim, the pleaders deliberately adopt the BBC's pseudonym “Jake.” No attempt is made to identify Jake. At paragraph 57.2(p), the claimants specifically plead that the allegation that Jake raped Cassidy is untrue.
FLA explains that he is concerned that this claim might attract considerable publicity and lead to the disclosure of his identity. He says that there are copy documents among the papers lodged for the earlier hearing in these proceedings on 7 July 2022 that referred to him by name, albeit no such document was referred to in open court at that hearing. Further, he asserts that there was reference during the hearing on 7 July to a published article which revealed the true identity of Cassidy. He estimates that some 30–40 people from the OneTaste community could identify him.
FLA is concerned that there were a large number of people, including journalists, in attendance at the hearing on 7 July. He fears that interested parties may unearth some of the key identifying information that could lead to his identity being publicly revealed.
The parties to these proceedings have not filed any evidence in response.
THE ARGUMENT
FLA relies on his Article 8 right to respect for his private and family life. Kate Wilson, who appears for FLA, argues that disclosure of his identity would have serious detrimental consequences for FLA's private life. She submits that, as a non-party, he will have no control over what documents might be disclosed. Further, he wishes to protect his position in respect of his own proceedings.
Ms Wilson argues that any examination of the claimants' conduct in respect of, and responsibility for, the criminal acts alleged in episode 9 will necessarily require an examination of the allegations against Jake. Further, she relies on the seriousness of the allegations in episode 9 and contends that these events are likely to play an important role in these proceedings. She asserts that the series appeared to build up to episode 9.
FLA is supported by the claimants who make plain that they are very conscious that their claim concerns highly sensitive and private information about third parties. Aidan Wills, who appears for the claimants, insists that they have no intention to cause any third party to suffer any damage or distress. Further, they are content to use the cipher FLA in these proceedings.
Catrin Evans KC and Ben Gallop, who appear for the BBC, submit that the basis on which FLA seeks anonymity is unclear. They assume that the application must be put on the basis that an order pursuant to rule 39.2(4) is necessary to secure the proper administration of justice and...
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