AAA privacy claim – no anonymity for covertly filmed lap-dancers

Posted: November 7, 2019

The High Court has rejected an application for anonymity and a speedy trial in a privacy case.[1] The claim was brought by the operators of two Spearmint Rhino lap-dancing clubs, along with nine performers at the clubs. It related to covertly filmed footage taken at the clubs in February 2019 by two private investigators engaged by a campaigning organisation, Not Buying It.

In light of the evidence put forward by the individual claimants, the court did not consider an anonymity order to be necessary or proportionate, as the evidence did not justify a derogation from the fundamental principle of open justice. The application for expedition was also refused, on the basis that the defendants had provided appropriate undertakings to the claimants in relation to the footage. The court also regarded the claimed risk that the defendants’ computer systems could be hacked in the period before trial as “fanciful”.

Comment

The judgment serves as a cautionary reminder that the courts will not simply “wave through” applications for orders that involve derogations from the fundamental principle of open justice. The general rule is that court proceedings are public. Derogations from the principle of open justice can only be justified in exceptional circumstances, when strictly necessary to secure the proper administration of justice.

As a starting point, the principle recognises a public interest in knowing the names of parties and witnesses in all cases. There is no general exception where privacy or confidentiality is in issue. The burden of establishing a case for derogation lies on the person seeking it, and must be established by clear and cogent evidence.

In this instance, the individual claimants provided neither clear nor cogent evidence to support their application. The basis on which anonymity was sought shifted during the hearing, but it transpired that the individual claimants were unconcerned about being identified as Spearmint Rhino performers. That fundamentally undermined the application for anonymity.

In procedural terms, the claimants had also erred by not making an application for anonymity before issuing the claim. That would be the “norm” in cases in which derogations are sought and can genuinely be justified, such as certain privacy cases.

Besides, if granted, the order sought for the performers’ names to be withheld from the claim form would, as the court noted, have been of little or no practical effect in any event, as it was not coupled with a reporting restriction prohibiting their identification.

Eleanor Steyn, Partner, Simkins LLP

Article written for Entertainment Law Review. To read the full article, click here.

 

[1] AAA v Rakoff [2019] EWHC 2525.