Judge bans stolen student sex pics sharing on BitTorrent
Net privacy game changed by landmark ruling against seeders
The case involved an anonymous student, known for the purposes of the case as "AMP", whose photographs were distributed by P2P software after her mobile phone was lost or stolen. The photos, described by the judgment as "sexually explicit", had been snapped with the mobile's camera. Lawyers successfully argued that the student, who wished to preserve her anonymity, was entitled to an interim injunction to protect her privacy and halt the distribution of the photos over BitTorrent.
"She has courageously struck a blow for women and privacy," wrote Mensch on Twitter.
AMP v Persons Unknown was heard in the High Court late last year - and is a fascinating and subtle case.
The claimant, AMP, had reported a phone as stolen, then learned that private photographs taken for her boyfriend were being distributed on Facebook. The defence alleges that blackmail threats were made, and the photographs were subsequently distributed worldwide via BitTorrent P2P software.
In what he describes as a "novel approach", Professor Andrew Murray of the LSE successfully constructed a legal argument to block internet users from seeding a torrent containing the photographs. The judge agreed that seeding the torrent was harassment, and that the claimant had a reasonable expectation of privacy under Article 8 of the Human Rights Act. Seeders are to be identified via a CPR disclosure order.
You can read the full ruling by Judge Ramsay here.
It's significant for a number of reasons. Such cases traditionally pit Article 8 (privacy) against Article 10 (free expression). As Ramsay explains it, Article 10 isn't a blanket, but "the exercise of that freedom carries with it duties and responsibilities which include restrictions necessary for the prevention of crime, for the protection of the reputational rights of others and for preventing the disclosure of information received in confidence".
Then Ramsay turns to Section 12, the free expression clauses which are at the core of concerns over celebrity superinjunctions. Section 12 explicitly protects journalism and creative works, and obliges a claimant to notify infringing parties first. But this is obviously hard to do when the Torrent seeders are anonymous. But Ramsay ruled that in this case, if AMP was obliged to notify each Torrent seeder, she'd be surrendering her right to privacy:
"If each Defendant had to be notified before this relief could be granted it would effectively deprive the Claimant of the opportunity to obtain the immediate interim relief which would otherwise be appropriate to protect her Article 8 rights," Ramsay notes.
This is an important ruling which, as the legal professor behind the argument points out, means that real world laws apply online. " I come from Cyberspace, the new home of Mind..." declared John Perry Barlow in 1995, "You have no sovereignty where we gather... Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here."
But the appeal to surrendering such rights does not convince judges. The fact that the harassment is taking place via the internet does not mean Section 8 cannot apply. An individual must have the same rights online as they do offline.
Other aspects leave the landscape unchanged. The claimant is not a celebrity, but the legal battle took three years, and we can assume, considerable expenses. Who among the rest of us can afford similar protection?
"Thus content on BitTorrent may just be regulatable after all," Professor Murray concludes, "although we accept this is a very unusual case and its wider application may be limited." ®
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