Tulisa, that sex tape and 'false' privacy becoming 'real' privacy

Only if you had a complete UK tabloid blackout for the last week would you have been able to escape the Tulisa sex tape drama. Juicy sordid details aside, the case is interesting because of the privacy statements made as well as the use of social media for the initial disclosure of private information and for the subsequent responses by those involved.

As many readers will be aware, Tulisa Contostavlos is a judge on the UK talent show X-Factor and was a singer with the group N-Dubz. It is widely reported that, in August 2011, Tulisa was apparently approached by an unidentified man who wanted to sell a supposed sex tape for £500,000. At that time, a spokesperson for Tulisa stated:

'This tape is 100 per cent fake and is just someone trying to cash in on her X Factor role. She is horrified that someone would go to the extreme lengths of fabricating a video. It is absolutely not her. Tulisa has categorically never allowed anyone to film her having sex'.

On Monday morning the sex tape went on sale on the website nottulisa.com [too late -- this site has been Oopsed by your favourite server] and then on Pappzd Magazine's website pappzd.co.uk (specialising in UK Urban Gossip & Entertainment News) for £3.90 per download. Not surprisingly it caused a social media frenzy. The six minute film, taken from a camera phone, shows a blonde woman performing an oral sex act. Nadia Kabahita, owner of Pappzd Magazine, stated that Pappzd Magazine normally received 4,000 daily views but received over 50,000 after publishing the sex tape.

At this time, a spokesperson for Tulisa stated: 'Tulisa has asked us not to comment on speculation about her personal life'. However, a spokesman for Pappzd Magazine wrote on their Twitter page that: 'So ummm... Tulisa’s lawyers just left our office after serving us a handwritten cease and desist notice'.

On Monday afternoon, counsel for Tulisa made an application before Mr Justice Tugendhat to restrain publication of the sex tape. He granted an injunction prohibiting anyone from 'using, publishing, communicating or disclosing all or any part of the film to any other person'. He has yet to give the reasons for his decision, although they are expected in the near future. Meanwhile, Ms Kabahita claimed that said staff 'were in shock' when the publication was presented with the order. She stated:

'Her lawyers came to our offices and demanded to take it down due to privacy law. And we were given a deadline in which to take it down otherwise there would be further action. So basically we’ve had to take the video down'.

As such, Tulisa's claim appeared to be one of 'false privacy'. In the case of McKennitt v Ash [2006] EWCA Civ 1714 the Court of Appeal confirmed that a claim can be brought in relation to purported private information about the claimant, irrespective of whether the information is true or not. In particular, Longmore LJ stated (at [86]) that:

'The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry'.

Such reasoning has been applied to a number of high profile claims. These include: Victoria Beckham v Bauer, where Mrs Beckham commenced proceedings in respect of the publication of a story concerning invented telephone calls and text messages between herself and her husband David Beckham; and Brad Pitt and Angelina Jolie v New Group Newspapers, where the couple commenced proceedings against the publisher of News of the World concerning a story which detailed their alleged visit to a divorce lawyer in December 2009 at which time they agreed to divide up their fortune and custody of their six children. Both cases settled out of court with substantial damages being paid to the respective claimants.

One case which did make it to court involved Jeremy Clarkson. Jeremy Clarkson denied a claim by his ex-wife Alexandra Hall that he had an affair with Ms Hall after he re-married. Mr Clarkson denied the affair but in October 2010 obtained an injunction to restrain the publication of purported private information: AMM v HXW [2010] EWHC 2457. In October 2011, Mr Clarkson discontinued his privacy action leading to the discharging of the anonymised privacy injunction because such injunctions are 'pointless' and 'do not work'. Indeed he stated:

'You take out an injunction against somebody or some organisation and immediately news of that injunction and the people involved and the story behind the injunction is in a legal-free world on Twitter and the internet'.

This may have been the thinking behind the next steps taken by Tulisa. This Kat was surprised to read yesterday that Tulisa had decided to post a 5 minute clip on YouTube to her 1.7 million followers on Twitter to 'set the record straight'. She admits that it is her and her ex-boyfriend Justin Edwards, aka old skool garage DJ Ultra on the sex tape. She said:

'As you can imagine I’m devastated, heartbroken. I’ve been in bits for the past few days. When you share an intimate moment with someone that you love and you care about and trust you never imagine for one minute that that footage may at any point be shared with the rest of the UK or even people around the world. So as you can imagine it’s a pretty tough time for me, but I don’t feel that I should be the one to take the heat for it or the stick. This is something that he took upon himself to put online... and he’s now sitting in silence pretending it’s not him on the tape, when it is.'

Mr Edwards also used Twitter to respond to Tulisa's accusations. He tweeted: 'To find the truth both sides of the story should be heard b4 passing judgement thatisall'. Then a short while later he also tweeted: 'I believe in silence being a sign of integrity but in this case I guess I'll have to speak up and Lay out the facts and let you guys decide'.

The IPKat is shocked by Pappzd Magazine's response to Tulisa's YouTube clip: 'Anyway, so ummm…. Tulisa now you’ve confirmed what Pappzd always knew, do you mind if we put the vid back up? OK, thanks'. To him, it suggests an utter disregard for the principles at hand ...

Merpel notes, without further comment, Tulisa's statement that "when you share an intimate moment with someone that you love and you care about and trust you never imagine for one minute that that footage may at any point be shared with the rest of the UK or even people around the world".