Harassment injunctions against anonymous internet users
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Watch how harassment solicitor serves for the first time ever an harassment injunction against anonymous online user via the social media app Instagram
Harassment solicitor Yair Cohen represented the Claimant in the case. The Claimant had used the picture-sharing social media service Instagram for his PR business and for social networking. At one point the Claimant started to receive dozens harassing messages via his Instagram account.
The Defendant, was, or were anonymous uses who created a number of Instagram accounts which they used to harass their victim. They posted posts and images which were particularly vile and highly offensive. They included personal attacks on the victim with a racial and sexual element hard-core sexual images and pictures of beheaded men. The campaign encompassed distressing references to the victim’s family home and parents and it included threats to exacerbate the nature and scale of his campaign of harassment and/ or disclose private information, or purported private information, about the victim and his family. The victim sought an injunction against the unknown Defendants to prevent further harassment and the disclosure of private information about him under Protection from Harassment Act 1998 and to prevent publication of private information under Article 8 of the Human Rights Act 1998.
Interim injunction pending disclosure of the identification of anonymous Instagram users
The victim asked the court to grant an interim injunction against the unknown Defendants pending an application for disclosure of their identity against from Instagram (known as Norwich Pharmacal Order) to assist him in identifying the individual (or individuals) responsible for the campaign. By that point, Instagram has already agreed to provide the information sought but it was going to take a little of time before Instagram would have been able to compile all the information pertaining to the disclosure of the identity of the anonymous users. So the basis for the urgency of the injunction application was that it could take some time before Instagram could provide the required identifying information and more time to process it once received. In the meantime, the Claimant required protection against the above-mentioned wrongdoings by way of an injunction.
Making an application for an harassment injunction without giving the Defendent notice of the hearing
It is inevitable that an application for an injunction against anonymous internet users will involve some derogation from general principles that govern the conduct of court hearings particularly in cases where a court hearing could result in restriction of the Defendant’s freedom of speech. For example, where anonymous internet users are concerned, it will generally not be practical to notify the Defendant of the court hearing as require by s. 12(2) HRA 1998 and CPR r 25.3(2) and (3) because the Claimant is unable to identify any potential perpetrator. Furthermore, often anonymous online harassers are fearful of escalation in the nature and scale of the publications and by the threats made to the victim so the victim might be too fearful to initiate pre-hearing contract with the Defendant. In the case of DDF the Defendant, via Instagram had made threats of serious violence against the victim. In other cases, the Claimant might be subjected to blackmail or to other forms of intimidation. Therefore the anonymity of the Defendant and recent escalation of the intensity of the campaign of their harassment against the victim coupled with the increasingly threatening nature of the messages were found to be compelling reasons for bringing such application without notice to the Defendant.
Making an application for an harassment injunction without serving any court papers on the Defendent
Another example of derogation from general principles that govern the conduct of court hearings is in relation to providing the Defendant access to relevant legal docu-ments. The Claimant applied for an Order to provide that no copies of the state-ments of case in the claim, and no copies of the witness statements and applications will be provided to a non-party without further order of the court.
Making an application for an harassment injunction in "secret" by granting Anonymity and Reporting Restriction.
In relation to his protecting his anonymity, this was in order to ensure the protection of the victim’s rights under Article 8 European Convention of Hunan Rights (a right to private life). There was no public interest in naming the victim which could outweigh the interference with his and his family’s Article 8 rights which this would entail. As to the reporting restriction, the question for the court when such a request is made is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.
An harassment injunction against anonymous internet users would result in restriction of the user’s freedom of speech
An injunction against anonymous internet users would result in restriction of the user’s freedom of speech which is a right granted under Article 10 of the European Convention of Human Rights. S. 12(3) of the Human Rights Act 1998 provides that the court may only grant a pre-trial interim relief, which might affect the exercise of the right to freedom of expression where the victim is likely to establish at trial that publication of the information in question should not be allowed.
Service of legal documents via social media
Perhaps the most challenging aspect of the case of DDF was in relation to service of the injunction against the Defendant, once granted. First, the victim sought an Order that he be permitted to serve the claim form and injunction on the Defendant via Instagram. CPR r. 6.15 pro-vides for service by an alternative method or at an alternative place where there is a good reason to authorise service by a method or place not permitted by the Part. The application must be supported by evidence and may be made without notice. The most important purpose of service is to ensure that the contents of the documents are communicated to the Defendant. As the Defendant was yet to be identified and the injunction sought was urgent (because further and more widespread harassment and/or disclosures of private information were threatened) the only means of contact which the claimant had at that point in relation to the defendant was the defendant’s Instagram account. The combination of the urgency to restrain the Defendant and the anonymous method of communication used meant that there was good reason for the Court to authorise service via Instagram; this would ensure communication of the documents to the defendant. As Instagram was based in the USA, the court had to also grant permission for the legal documents to be served outside the jurisdiction.
Specific technical challenges when serving injunctions via Instagram
Finally, service of legal documents via Instagram requires some additional perpetrations. First, many social media sites, including Instagram have minimum requirement of image size and pixels. The documents you must comply with those requirements otherwise they will either not be posted at all or be too unclear for the recipient to read. For example, you cannot simply photocopy or PDF an A4 document and post in via Instagram because the document will not be readable. To ensure that service is properly affected each page of the injunction must be converted into a small number of high resolution readable images. The only way to post messages via Instagram is by using a mobile device. Unlike email, when a user deletes their Instagram account, the messages they had already sent to other users are automatically be deleted from the recipients’ account too. This means that as soon as a copy of the injunction is posted to the defendant, the poster must make an instant screen grab to prove that they serve the legal document. Otherwise, if the Defendant deletes their Instagram account after service but before the screen grab, there will be no way for the poster to prove that they actually posted the injunction because all the documents relating to the deleted Instagram account will instantly disappear.