The High Court has granted an application to anonymise the identities of all individual claimants represented by Austen Hays in the data privacy group action brought against Grindr. The order provides that the claimants’ names will be withheld from the public record and must not be disclosed in open court, and that the claimants have permission to withhold their addresses from the claim form. This will protect the claimants from any risk that their identities might be revealed, and enable them to seek redress in a claim where the very issue is that their data was not adequately protected.
This is a significant victory for the claimants, as derogations from the principle of open justice are rare and can only be justified in exceptional circumstances.
The granting of blanket anonymity across a category of claimants is an example of ‘unusual circumstances’ discussed in Farley & Ors v Paymaster (1836) Ltd (Trading As Equiniti) [2024] EWHC 383 (KB), in which Mr Justice Nicklin emphasised that ‘there are no categories of litigant who are entitled to anonymity or other derogations from open justice’.
Background to the claim
The claimants allege that Grindr, the world’s most popular LGBTQ+ dating app, deployed covert tracking technology, unlawfully processing and sharing users’ sensitive personal data with third and fourth parties, including a number of advertising firms, without users’ consent.
The claimants allege that during various periods between 2018 and 2020, their highly sensitive information, including HIV status, last tested date, ethnicity, location, and other data relating to their sex life/and or sexual orientation was shared, potentially for commercial purposes and in breach of data protection law.
As stated in JIH v News Group Newspapers Ltd, R (on the application of C) v Secretary of State for Justice [2011] EWCA Civ 42, the principle of open justice usually requires that hearings should be conducted in public, fully reportable, and that parties to civil proceedings should be named.
The general rule under CPR 39.2 is that a hearing should be held in public. However, CPR 39.2(4) provides that the court may order that the identity of any person should not be disclosed if that non-disclosure is necessary to ensure the proper administration of justice and to protect the interests of that person.
The Court of Appeal in XXX v Camden London Borough Council [2020] EWCA Civ 1468 held that, when considering an application under CPR 39.2(4), the court must carry out a balancing exercise of the relevant interests under CPR 39.2. In carrying out that balancing exercise, the court must have regard to the following principles. It must:
1. have particular regard to the importance of freedom of expression, protected by Article 10 of the ECHR, the extent to which material is public or about to be made public and the public interest in publishing the material;
2. consider the fundamental rule of common law that proceedings must be heard in public subject to specified exceptions;
3. be careful to prevent extensions of exceptions by analogy; and
4. give rights to parties who may have their private life affected by court proceedings, among other things.
The recent judgment in Farley reiterated the high threshold for the grant of anonymity, and emphasised that unless there are unusual circumstances, no category of litigant is entitled to anonymity, except in ‘very unusual circumstances’, even in a group action.
Given the high threshold for an anonymity order, for a single claimant let alone a class, it was a significant hurdle to persuade the court to grant anonymity to all claimants without requiring individuated witness statements.
The claimants submitted that the case was about Grindr’s unlawful data sharing with third parties, and therefore it would defeat the very purpose of the allegations to disclose the claimants’ names and addresses to the public, being a further third party.
Notwithstanding this, Grindr claims to have designed the app with anonymity to the fore, which allows users to sign up to the app without disclosing their real names and addresses. By revealing the identities of individuals bringing a claim, the court would automatically be revealing a claimant to be a user of the app. It was averred that the inherent nature of Grindr’s services potentially renders all personal data entered into the app, even information as conventionally mundane as a name, to become associated with a user’s sexual orientation and possibly their medical status.
The crux of the claim is that the claimants’ existence on the app and the highly sensitive personal information they shared was not kept confidential by Grindr, leading to significant distress.
It is likely that without the anonymity order, many users of the app would feel unable to bring a claim as the risk of being ‘outed’, or having their private information made public would be too great. As such they would be denied access to justice.
Unlike the Farley case, which concerned limited information primarily regarding pensions and salary, the information in question in this case is inherently private and sensitive to each claimant, and consequently it was not necessary to provide evidence as to each claimant’s particular circumstances.
The grant of the order demonstrates the importance of making sure the terms of an anonymity order are proportionate and maintain the principle of open justice as far as possible. The basis of the claim will still be dealt with fully and transparently in open court, and the anonymisation of the claimants’ names and addresses is a minimal restriction on the important principle of open justice.
Chaya Hanoomanjee is managing director at Austen Hays, a Gateley affiliate. Rachel Bright and Ian Li, who are both solicitors at Austen Hays, also contributed to this article
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