Out-Law News | 03 Oct 2019 | 4:50 pm | 2 min. read
The requirement to remove online content means that the injunction granted by the High Court earlier this year goes further than similar orders in cases involving trespassing, according to Julian Diaz-Rainey of Pinsent Masons, the law firm behind Out-Law.
"We've acted for clients who have been successful in gaining injunctions preventing 'urban explorers' from entering onto their property, but this case goes further than the courts have previously been prepared to go, in that the judge also ordered that online content of them trespassing should be deleted," he said.
"This type of trespassing can be a real problem and it's easy to see how online content, as was the case here, can encourage others. The decision should be welcomed as a positive step towards preventing trespassing," he said.
We've acted for clients who have been successful in gaining injunctions preventing 'urban explorers' from entering onto their property, but this case goes further than the courts have previously been prepared to go.
The owners of the O2 sought an injunction from the court preventing three named individuals and, notably, "persons unknown", from trespassing on the arena; as well as the removal from the internet of videos which "foreseeably encourage" others to trespass. The named individuals are part of a group of so-called urban explorers who regularly scale various buildings and post videos about their exploits online.
Before the judge would grant the particular type of injunction sought by the building owners, they first had to prove that there was a strong probability that the individuals, and the unnamed others, would trespass in the future. They also had to prove that, if such trespass occurred, it would result in harm that was "so grave and irreparable" that it could not otherwise be avoided.
The judge said that he was satisfied that the first condition had been met. He said that urban exploring "is currently very fashionable", and that the named individuals appeared to be "significant exponents of the genre" who "engage in regular trespass at the arena". He noted that two of the named individuals were subject to criminal behaviour orders which ordered them not to be on a structure "in areas that are not open to the public" without prior permission. However, he said that as the owners of the O2 would not know should these orders be amended in future, the injunction was a justifiable additional measure.
Turning to the 'persons unknown' aspect of the injunction, the judge heard how five young Dutch nationals had come to London to climb the O2 because they had been "inspired by YouTube videos" depicting similar acts. It was clear, he said, that the posting of the videos online was "an integral part of the original trespass" which could not be justified by the named individuals' right to freedom of expression.
"It is not the fact of publication alone," he said. "It is the propensity of the videos to encourage others to infringe the claimants' property rights which is in issue."
"[T]he claimant is using the law to protect property rights which has the ancillary effect of restricting freedom of expression which, in my judgment, is proportionate in this case in that it is limited to what is necessary to protect such property rights as well as the current open access to a national landmark which is currently enjoyed by members of the public visiting the arena," he said.
The judge added that he may have allowed the videos to remain online had there been "evidence that the videos were regarded as simply entertainment in their own right and did not carry with them the implicit encouragement of third parties to engage in similar conduct". However, that was not the case here.
The injunction will last for two years, as the law in this area is "fast-moving".
17 Jan 2018