Insights High Court grants anonymity to third party applicant in libel proceedings concerning BBC podcast series


In November and December 2020, the BBC published an introductory episode and ten full-length episodes of a podcast entitled “The Orgasm Cult”. The series focused on OneTaste Inc and its founder and former CEO, Nicole Daedone, in promoting and selling classes and programmes dedicated to the art of “Orgasmic Meditation”.

Ms Daedone and OneTaste, together with Rachel Cherwitz, issued proceedings against the BBC for libel, alleging that the podcast is defamatory as it suggests that the claimants controlled a destructive sex cult which, under the false pretence of being a wellness organisation promoting empowerment for modern women, deliberately manipulated and exploited vulnerable women causing them lifelong trauma for the purpose of making themselves wealthy. The claimants also say that the podcast suggests that the claimants bore responsibility for serious criminal acts including the repeated rape of a vulnerable woman, sex trafficking, and facilitating and benefiting from prostitution and violations of labour law. Further, the claimants say it is defamatory as it asserts that allegations published by Bloomberg in 2018 are true.

FLA is a third-party applicant, who is not a party to these proceedings but who has issued his own claim against the BBC, alleging misuse of private information and breach of data protection law.

Episode 9 of the BBC series refers to a man named “Jake”, which is a pseudonym. FLA said that he is “Jake” and that, although his real name is not revealed by the BBC in the podcast, he can be identified by jigsaw identification from other information included in the podcast. FLA alleged that episode 9 falsely claims that Jake raped a vulnerable woman referred to in the podcast by the pseudonym “Cassidy”.

FLA was concerned that highly private and confidential details about him might be disclosed either during his own claim or in these proceedings. He therefore applied to the court for a non-disclosure order protecting his identity and any other details that might allow his identification. In addition, FLA sought ancillary orders that: (i) he should be allowed to issue this application in the name FLA; (ii) his application should be heard in private; (iii) there should be reporting restrictions; and (iv) copies of his confidential witness statement and any other documents that might identify him should not be provided to non-parties without further order. He also sought various directions from the court.

On considering FLA’s application on the papers, Mr Justice Pepperall directed that the application: (i) including the supporting evidence disclosing FLA’s identity, should be served upon the media through the Injunction Applications Alerts Service; and (ii) should be listed for hearing in public but that, to prevent publicity defeating the object of the hearing, the applicant’s name should appear in the list as FLA and should not be disclosed save as directed by service through the Injunction Applications Alerts Service.

In support of his application, FLA said that there were documents lodged for an earlier hearing in these proceedings, which was held in open court, that referred to him by name. He also said there was a reference during that hearing to an article revealing the identity of Cassidy and that 30 to 40 people from the OneTaste community could identify him. Further, he said he was concerned that journalists present at the earlier hearing could unearth some of the key identifying information that could lead to his identity being publicly revealed.

FLA relied on his Article 8 right to respect for his private and family life, arguing that disclosure of his identity would have serious detrimental consequences for private life.

The claimants supported FLA’s application. The BBC sought clarity on the basis on which FLA sought anonymity and confirmed it had no intention to unmask Jake. The BBC said the risk of jigsaw identification could be avoided if the parties worked together to devise a scheme, but it did not oppose relief, provided it was limited to protecting information that was not already in the public domain.

Pepperall J found that all parties had already gone to some lengths to protect Jake’s identity. Therefore, it was not a question of preventing any party from exposing FLA. However, he accepted that the more information that was placed in the public domain, the greater the risk of FLA being exposed through jigsaw identification.

This risk was exacerbated by the nature of the claimants’ business, Pepperall J said, as well as the inevitably prurient interest in the sexual allegations made in the podcast and the seriousness of the specific allegations made in episode 9.

Pepperall J noted that in FLA’s own proceedings against the BBC, Master McCloud had already decided that it was necessary to order that FLA’s identity should not be disclosed and that the court had to be astute to ensure that the Master’s order and the purpose of FLA’s claim were not undermined by the disclosure of FLA’s identity in these proceedings. Accordingly, he concluded that it was indeed necessary to order that FLA’s identity should not be disclosed in these proceedings.

However, Pepperall J was not satisfied that it was necessary to restrict the reporting of details of this case. He was optimistic that, together with FLA’s lawyers, the parties would be able to find a way to devise and agree a scheme that would ensure that issues concerning episode 9 could be properly litigated in public while minimising the risk of jigsaw identification. He also granted FLA liberty to apply for further directions if it proved impossible to devise a workable scheme or some development gives rise to a new risk of his identification.

Pepperall J also ordered, under s 11 of the Contempt of Court Act 1981, that there should be no publication of FLA’s true name in connection with these proceedings, but that nothing should prevent the media from using the pseudonym “Jake”.

As for access to statements of case, there was no need for any order to prevent access to the claimants’ Particulars of Claim, as they adopted the pseudonym “Jake” and did not contain any further facts to allow Jake to be identified.

Given that the BBC had not yet filed its Defence, Pepperall J said that it was speculative as to whether it would give further rise to Jake being identified. Although there was some risk that the document would inadvertently plead details that might increase the risk of jigsaw identification, it was not proportionate to issue a blanket order preventing public access to the Defence. Instead, Pepperall directed that a mechanism should be devised to allow FLA a reasonable opportunity to check the Defence before the public could have access to it. The BBC accordingly undertook to provide FLA’s lawyers with the Defence one day before filing it and Pepperall J ordered, pursuant to Rules 5.4C(4) and 3.3(1) of the CPR, that a copy of the Defence should not be provided to any non-party pursuant to a request made within ten days after filing the Defence. In Pepperall J’s view, this “modest interference” with public access to statements of case was necessary and appropriate to minimise the risk of jigsaw identification.

As for non-parties applying to the court under Rule 5.4C(2) for access to other court documents, e.g. witness statements and exhibits, Pepperall J ordered that any such application must be made on notice to the parties and to FLA. (Nicole Daedone v British Broadcasting Corporation [2023] EWHC 113 (KB) (26 January 2023) — to read the judgment in full, click here).