October 7 2019

Dancing with anonymity – AAA -v- Rakoff [2019] EWHC 2525 (QB)

Thomson Heath Jenkins & Associates
Thomson Heath Jenkins & Associates

Eleven Claimants; nine individual dancers and the sexual entertainment venue (SEV) Spearmint Rhino and Sonfield Developments Limited, have brought a claim against the campaign, Not Buying It Limited and its Executive Director, Dr Sasha Rakoff along with two private investigators, for misuse of private information and the breach of the Data Protection Act 2018.

The Not Buying It campaigns against sexual entertainment venues and as part of their work they have carried out undercover investigations (including covert filming of dancers) at various SEVs operated by Spearmint Rhino.

The Claimants discovered this and issued an Application seeking an interim injunction to restrain the Defendants from circulating, publishing or causing the publication of any of the footage. Within this Application Notice, the Claimants sought directions for the identities of the nine dancers to be anonymised and a speedy trial.

The judge, Mr Justice Nicklin, in his judgment, began by addressing the issue of the unsealed Claim Form that had arisen at earlier hearings in the case. It had emerged at a hearing on 30 July 2019 that the Claimants had not been able to obtain a sealed copy of the Claim form as the names and addresses of each Claimant were not provided as required by CPR 16.2 and Part 16 Practice Direction (“PD”) 2.2 and 2.6 and therefore the Court had retained the Claim Form under Part 16 PD 2.5. The Claimants had ‘failed to make’ an application for the anonymity of the Claimants before issuing the Claim and while the anonymity application sought to address this, the Defendants have still not been served with a sealed claim form.

Mr Justice Nicklin provided a detailed review of the case law before refusing the anonymity application, stating that he believed it not ‘necessary nor proportionate’ at this stage in the proceedings. He also noted that the Claimants’ position was difficult to understand considering they were only seeking to issue a Claim Form anonymising their names but did not seek an order prohibiting their real names from being published or identified as claimants in the proceedings.

Finally, the Judge did not believe an expedited trial was necessary and the Claimants were content with the undertaking provided by the Defendants. The undertaking is not to further circulate, publish or cause to publish the footage taken without pixilation of the faces of the performers except to investigating offers of the specified Local Authorities [in the course of their duties], to their legal advisers or insurers or as required by court order, until the conclusion of trial or any further order from the Court. He believed the Claimants’ suggestion that there was a risk the footage might be ‘hacked’ from one of the Defendants’ computers was ‘fanciful’.

In summary, this interim judgment shows the Court’s increasing distaste towards claimants treating anonymity applications as an inevitable procedural exercise. It is also interesting and clearly significant to the developing case law on the two competing principles of privacy and public interest.

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