Applause Store Productions Ltd. & Anor v Raphael, Court of Appeal - Queen's Bench Division, July 24, 2008, [2008] EWHC 1781 (QB)
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Applause Store Productions Ltd. & Anor v Raphael, Court of Appeal - Queen's Bench Division, July 24, 2008, [2008] EWHC 1781 (QB)
Neutral Citation Number: [2008] EWHC 1781 (QB)Case No: HQ07X044333IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 24 July 2008 Before :RICHARD PARKES QCSitting as a Deputy Judge of the High Court- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Lorna Skinner (instructed by Olswang) for the ClaimantsJeremy Pendlebury (instructed by Bar Pro Bono Unit) for the DefendantHearing dates: 30 June - 3 July- - - - - - - - - - - - - - - - - - - - -Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................RICHARD PARKES QCRichard Parkes QCINTRODUCTION1. This is an unfortunate dispute between two former friends. The Claimants are Mathew Firsht, a successful businessman, and his company, Applause Store Productions Ltd (`Applause Store'), which provides audiences for popular television programmes such as Big Brother, The X Factor and Top Gear. The Defendant, Grant Raphael, was a close friend of Mathew Firsht at school in Brighton and for some years afterwards, although they became estranged several years ago. Mr Raphael is a freelance lighting cameraman, so he also spends much of his time working in television.2. The case concerns the popular social networking site, Facebook, which was started at Harvard several years ago, spread to university networks on both sides of the Atlantic, migrated from the universities as its users graduated, and has now (as appears from the evidence in this case) become popular with older users in the media and television industries. As Mr Firsht's twin brother Simon explained in his evidence, users create `profiles' for themselves, in which they may include as much personal information as they wish. Facebook enables them to adjust the privacy settings of their profile so that (for example) they may permit general access or restrict access to those whom they accept as `friends'. The concept of a `friend' has a special sense in Facebook, for it includes all those who make a request to be accepted as a friend and whose request is accepted by the user. The `friends' are listed on the user's profile. Profiles will contain a `wall' on which those permitted access may post messages which can be read by those who have access to the profile, and will contain links to any `groups' to which the user belongs. `Groups' are Facebook pages which may be set up by users, notionally, it appears, as a resource which may be visited by any Facebook user interested in the group's subject matter. Simon Firsht himself started using Facebook in December 2006, and neither at that stage nor during the summer of 2007 did he make any attempt to adjust his privacy settings, so that any fellow member of the London network of Facebook could have accessed his profile.3. A Facebook profile was created in the name of Mathew Firsht during the evening of 19th June 2007. It contained material which was admittedly private information. The following afternoon, a Facebook group was set up, linked to the profile by hyperlink, which was called `Has Mathew Firsht lied to you?'. It contained material which was admittedly defamatory of Mr Firsht and of Applause Store. Neither the profile nor the group was set up by Mathew Firsht. Both were set up using a computer with Grant Raphael's IP address, that is to say, using a computer at the flat where he then lived. That is all common ground. The main issue which I have to decide is whether Grant Raphael was responsible for putting up the false profile and for creating the group.THE MATERIAL PUBLISHED ON FACEBOOK4. The false profile contained information as to Mathew Firsht's sexual orientation, his relationship status (that is to say, whether he was single or in a relationship), his birthday, and his political and religious views. Not all this information was accurate, but all of it is conceded by Mr Jeremy Pendlebury, counsel for the Defendant, to be information in respect of which Mr Firsht had a legitimate expectation of privacy. By contrast, some of the material alleged in the Particulars of Claim to be private information (for example, as to Mr Firsht's employment as managing director of the First Claimant) is no longer contended to be actionable. That leaves four items of information as to the status of which the parties are not or may not be agreed. I deal with those in the confidential annex to this judgment, and conclude that to the extent that two of those items relate to Mr Firsht's supposed sexual preferences, it is indeed private information which gives rise to a cause of action for misuse of private information. By contrast, I was not persuaded that the other two items, containing verbal information about Mr Firsht's whereabouts (t...See the full content of this document
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