Instagram & Privacy

In the recent case of Wan-Bissaka and another v Bentley [2020] EWHC 3640 (QB) (9 November 2020), the High Court has shown its willingness to restrain individuals from posting private information obtained during a previous relationship on online media platforms, such as Instagram.

Wan-Bissaka & Anor v Bentley

Case summary

The proceedings were commenced by the first Claimant, who is a well-known footballer, and his partner against the first Claimant’s former girlfriend. The Defendant had put up a post on Instagram thanking her followers for supporting her relationship with the first Claimant ‘for the last three years’ and congratulating the Claimants on their expected child. There were a number of issues with this post:

1. It tagged the first Claimant into the post;
2. The relationship between the first Claimant and the Defendant ended before the relationship between the Claimants had begun; and
3. The Claimants had not made it public knowledge that they were having a child.

The Defendant then began to post private text messages between her and the first Claimant that she had retained from when the first Claimant and the Defendant were in a relationship.

The first step in any claim, such as this, is for a Claimant to send a letter before action to a Defendant. Usually such a letter will request that the Defendant provides undertakings not to continue doing the actions that they are accused of. In this case, such a letter was sent to the Defendant by the Claimants but the Defendant refused to provide any undertakings to the Claimants and so Court proceedings were issued. The Claimant applied for an interim injunction with a view to restraining the Defendant from disclosing any further material over the course of the case. At the first hearing, conducted by telephone, the Defendant gave undertakings to the Court not to disclose any further materials until she had obtained legal advice.

The matter was then set for a further hearing the following week, to which the Defendant did not attend or file any evidence. Instead her father rang the Court claiming that this matter was not a real claim – an interesting tack to take given that he rang the Court to tell them this!

Notwithstanding the fact that the Defendant did not attend, injunctions are granted entirely at the Judge’s discretion. The Judge was, however, satisfied if the Defendant was not restrained, she would post further private information online and accordingly granted the injunction.

Comment

This case highlights a common misconception that lawyers practising in this area hear regularly – the untrue and misguided claim that you are free to post whatever you wish online without there being any consequences.