By Adam Speker KC & Felicity McMahon
Date of Publication: 7 Jul 2016
Adam Speker and Felicity McMahon are running a session on “Protecting Public Officials and Corporates” at Conference5RB on 29 September 2016. Here they discuss some of the issues which will be explored.
QN: Why are you looking at public officials and corporations together?
Adam: As Tugendhat J put it in Thompson v James  EWHC 515 and The Law Society v Kordowski  EMLR 2, a number of cases have come before the courts in recent years which can be said to be campaigns of vilification or harassment and libel aimed at public officials. These are often conducted on the internet. Other campaigns have been directed towards companies (Huntingdon Life Sciences), perhaps because they experiment on animals or run nuclear reactors. How and where the courts draw the line between a campaign of vilification and one of lawful protest is the issue we will be exploring.
Felicity: Public officials and corporations are different to personal claimants. Public authorities cannot sue for libel as a result of Derbyshire v Times Newspapers  AC 534 and public funding for public officials to bring libel actions is only available in exceptional circumstances, if at all. Freedom of expression is particularly important in the political sphere yet it has been held to be a legitimate aim of the state to protect public servants from unwarranted comments that had, or could have, adverse effects on good administration: see Heesom v Public Service Ombudsman for Wales  EWHC 1504 (Admin).
As for corporations, they cannot bring claims under the Data Protection Act 1998 or for misuse of private information and may find it hard to overcome the high hurdle imposed by section 1(2) of the Defamation Act 2013 in many cases. So other avenues must be considered.
QN: So what can be done?
Adam: That is what we will consider at the conference. The key remedy is an injunction under the Protection from Harassment Act 1998 (PHA). The PHA was amended in 2005 to clarify that claims can be brought by companies to protect staff. Two first instance decisions handed down since the last conference highlight the issues.
The first is Merlin Entertainments v Cave  EMLR 3. In Merlin, four companies and one individual sought an injunction under the PHA to stop Mr Cave sending mass emails and setting up websites in which he campaigned on the issue of safety in theme parks, and criticised Merlin and individuals, sometimes in intemperate and hurtful terms. The Judge (Mrs Justice Elizabeth Laing) accepted that the matters raised by Mr Cave were in the public interest and that he sought to prove the truth of what he published. She said that the question in such cases was whether the conduct complained of had extra elements of oppression, persistence and unpleasantness, such that it crossed the line into harassment. This would have to be scrutinised carefully to protect a defendant’s article 10 rights. On the facts, the judge refused to grant the injunction.
Felicity: The second is Cheshire West v Pickthall  EWHC 2141 (QB) (where Adam acts for the claimants). Here the courts granted an interim injunction, and later a permanent injunction, to prohibit the defendant from, amongst other things, publishing allegations and abusive remarks about employees, officers and Councillors of the claimant council on the internet. In the interim injunction decision, Edis J noted that, “the right under Article 10 does not just exist for the benefit of the defendant but of the public at large and since the claimants are public officials and elected politicians there is a public interest in allowing free comment about them. There is a limit to the scope of that public interest and that is the context in which this application falls for consideration.” On the facts, he granted the application. Later, Mr Justice Holroyde granted summary judgment and a permanent injunction.
QN: Where would the limits arise?
Felicity: One issue is whether a defendant has an arguable case on the truth of the accusations. Mr Cave was held to do so, Mr Pickthall was not. Another is who the defendant is – they might be an expert, such as Mr Cave, or a dissatisfied litigant, as the court found in the case of Mr Pickthall. Another factor is the evidence of adverse effects on staff. This was said to be very limited in Merlin; not so in Cheshire West.
Adam: The status of the defendant can be particularly important. Many councils have problems with not only dissatisfied members of the public but councillors who might accuse the council of corruption or mismanagement and the council may seek advice on whether it can obtain an injunction to protect its staff. The question of where the public interest lies in such cases can be very difficult to answer, particularly if the councillor is elected on a manifesto to clean up corruption even if there is no, or no evidence, of corruption.
Felicity: There will be issues over the language used, the more abusive, the more likely the court will intervene and on the scope of any injunction. The Strasbourg Court held in Appleby v United Kingdom (2003) 37 EHRR 38 that article 10 does not bestow any “freedom of forum” for the exercise of that right so it was not a breach of the right to freedom of expression for a privately owned shopping centre (or company headquarters) to ban protestors. However, a litigant who is a council resident cannot be denied access to council services even if he or she can be stopped from abusing council staff.
Adam: On the scope of any injunction, in both Thompson v James and Cheshire West, the courts made clear that the publication of a website is not harassment, it must be the material on it. In Thompson, Tugendhat J explained, “What I have found to be the vindictive campaign is that she included in her blog the specific allegations of corruption etc that I have referred to. It is no answer to an allegation of harassment by specific writings posted on a blog that many or most of the other matters posted on the blog are not harassment.” Equally, it is not reason to close down the whole website because some material on it is harassing. Although in Law Society v Kordowski  E.M.L.R. 2 the judgment did require that whole website was shut down.
Qn: Can the PHA be used to stop other annoying activities such as excessive Data Protection Act subject-access requests and Freedom of Information Act requests?
Adam: An interesting question. Some litigants are notorious for making an excessive number of FOIA requests which can be extremely time-consuming to answer. However, FOIA is an important constitutional statute as the courts have explained in Kennedy v Charity Commission  2 WLR 808 at  and Dransfield v The Information Commissioner  EWCA Civ 454 at . It enables ordinary citizens to obtain the information held by a public authority and thus to know what the authority knows. FOIA carefully strikes a balance between the public interest qualifications militating for and against disclosure and has its own protections against vexatious conduct. Moreover, it is questionable whether it is harassing of individuals to have to answer FOIA requests unless they are targeted in some way at individuals.
Felicity: The Data Protection Act also has built in mechanisms under sections 7 and 8 to avoid excessive subject-access requests. These include the provision that a data controller does not have to answer an identical or similar request unless a reasonable interval has elapsed.
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