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The Right to Privacy and the Ashley Madison hack

Posted on 21 August 2015 by Claire Gill


This week, the hacking group “Impact Team” has released personal data stolen from online married persons dating site Ashley Madison. The site, based in Canada and owned by Avid Life Media Inc, controversially encourages its members to have affairs. Cue widespread panic amongst those identified members whose secrets are out of the bag, who fear that their marriages and their reputations may be destroyed. No-one has the right to publish this private information, which apparently includes members’ sexual preferences, reveals the fact they may have had or are looking for sex outside marriage, as well as their IP or even home addresses and some credit card details. To publish it, barring a very good reason on public interest grounds, would be a misuse of private information, actionable under the Human Rights Act 1998, and a potential breach of the Data Protection Act 1998.

Deciding how to deal with a leak of your data can be difficult and will depend on your circumstances. If the data leaked is fake, then better to say so. If it is undeniably real, the first step is likely to be to speak to your spouse before your lawyer.  It is possible to anonymise privacy claims, but anonymity can’t be guaranteed, so legal action may run the risk of drawing more attention to the problem. However, there may be cases where taking action is necessary, either to prevent more widespread publication in the mainstream media, or to seek compensation for the damage caused by the breach. 

Public figures have privacy rights. Some public figures have already been forced to explain the presence of their apparent email addresses in the database, only for them either to have to answer for what they have done, or to explain that their address has been used without their knowledge. The Honourable Mrs Justice Elisabeth Laing DBE in AMC and KLJ v News Group Newspaper Limited, who granted a sportsman an interim privacy injunction against the Sun on Sunday, said that she does “not consider that being a public figure of and by itself makes the entire history of that person's sex life public property”. The fact someone may have signed up to a dating site that encourages adultery is in the vast majority of cases no-one’s business, whether you’re famous or not.

A national class action lawsuit has been launched in Canada against Avid Life Media and lawyers there have put out a call for anyone affected in Canada to get in touch. Class actions, or Group Litigation Orders, are less common here, particularly with this type of claim, but individual claims can be brought and may be managed by the court as a group- as happened in the phone hacking cases against Newsgroup Newspapers and Mirror Group Newspapers.

If there is evidence that the information is about to be published in this jurisdiction by an identifiable publisher or person, it may be possible to seek an injunction, or to seek damages for data protection and privacy breaches if the information is published. It may also be possible to bring these claims on a “no win no fee” basis.

Leaking these details doesn’t just jeopardise your marriage. It increases the risk of “identity theft”. Customers of Carphone Warehouse also suffered a cyber attack in which the personal and banking details of 2.4 million customers were accessed. The Information Commissioner’s [ICO] website offers practical guidance to guard against identity theft.

Though it is like shutting the gate after the horse has bolted, Ashley Madison is now offering its full profile delete services for free.  That would seem a sensible place to start.

Claire Gill and Moritz Schirmeister


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