Data protection, bigamy and Facebook: an unusual trio

Background

On 24 July 2018, the High Court dismissed a claim for misuse of private information, breach of confidence and alleged breaches of the Data Protection Act 1998. The Claimant, Harlow Higinbotham, was a US citizen who got married in 1991. In 2001 the Claimant met the First Defendant, a Thai national and they began a relationship. In 2003, they got “married” in a Thai ceremony, while not a legal marriage, they treated it as a significant event in their relationship and the Claimant insisted that they have children. The First Defendant underwent IVF and gave birth to triplets in November 2008. The relationship broke down towards the end of 2009.

Following the breakdown in their relationship, various legal proceedings were instigated:

• In March 2010, the First Defendant commenced proceedings in Thailand for child support. This led to the Claimant’s wife finding out about the relationship.
• In January 2011, the Claimant’s wife brought proceedings in Thailand against both the Claimant and the Defendants for repayment of sums paid to the First Defendant during the relationship.
• In June 2011, the First Defendant commenced proceedings in the US to register and enforce the Child Support Order.

The Facebook saga

In February 2014, the First Defendant created a Facebook profile in the name of the Claimant and containing details of the Claimants employment, education, place of birth and current residence. The profile also included a timeline of events including “Got married” in 1991. Appearing prominently on the profile was a picture of the Claimant, First Defendant and their three sons.

In December 2016, the Claimant commenced proceedings in England alleging that the profile was created with the intention of causing harm, distress and embarrassment to the Claimant and/or for the purpose of placing collateral pressure on the Claimant to settle the legal claims against him. In particular the Claimant relied on:

• the personal and private nature of the information which falls within Article 8, the right to respect for one’s private life
• the fact that the First Defendant knew that the Claimant wished to keep the private information confidential and had agreed to do so
• that the creation of the profile was an unjustified infringement of the Claimant’s right to privacy, a misuse of his private information and/or a breach of confidence
• that there was no justification for publication of the material, and
• that Facebook’s terms of service state that “You will not… create an account for anyone other than yourself without permission”

The Claimant claimed compensation under the Data Protection Act and/or damages for the misuse of private information, interest and an injunction to prevent further publication of the private information. On 6 July 2017, Master Yoxall heard an application for the claim to be struck out as an abuse of process and/or for summary judgment against the Claimant on the breach of confidence and misuse of private information claims.

Master Yoxall referred to the Claimant’s “double life” and stated that he was not persuaded that the Claimant had no real prospect of establishing that the publication of the Facebook profile was a misuse of private information. In fact, he stated that “Judged objectively, the Claimant has a real prospect of successfully arguing that his life in Thailand was to be kept secret”, nonetheless, he struck out the claim as an abuse of process.

On appeal, Mr Justice Nicklin agreed that the claim was an abuse of process and stated that the claim “has a total absence of reality… and its continued litigation would bring the administration of justice into disrepute”, further he held that the claim had been brought not for any legitimate reason, but as an act of harassment or revenge.

However, Mr Justice Nicklin disagreed with the Master’s statements about there being a real prospect of success for the breach of confidence and misuse of private information claim. He stated that “Most rational people would recognise that the chances of keeping secret the existence of a second “wife” and three children were slim to non-existent”. Further, the Claimant had already lost control of the information due to the process of litigation in Thailand and the US, where he had actively chosen to pursue the litigation and had chosen to place the private information into the public domain.

Mr Justice Nicklin held that there was almost no prospect, even if the claim was successful, of an injunction being granted and that the court would not award a significant sum by way of damages. When measured against the wealth of the Claimant and the costs of the proceedings, any damages awarded would be trifling. The appeal was dismissed.

While this case pre-dates the introduction of the GDPR, it evidences an increasingly common trend where claimant’s take a ‘kitchen-sink’ approach and bring a claim involving multiple strands of data protection and privacy law. It is interesting to note that despite the case involving a claim for damages under the Data Protection Act, the judgment barely touches on this issue and merely quotes the earlier judgment of Master Yoxall which stated that “the likely award of damages under the DPA is likely to be very limited”.

(Harlow Higinbotham (formerly BWK) v Wipaporn Teekhungam, Winto Anthony Perry [2018] EWHC 1880 (QB))