Rada-Ortiz v Espinosa-Vadillo
Reference:  EWHC 2175 (QB)
Court: High Court (Queen's Bench Division)
Judge: Cranston J
Date of judgment: 15 Apr 2015
Summary: Harassment - websites - injunction - justification
Gervase de Wilde (Claimant)
Instructing Solicitors: Cohen Davis Solicitors for C
The Claimant (“C”) and the Defendant (“D”) both worked for the International Maritime Organisation (“IMO”). C was a long-term employee and D only worked there for a short time.
D and another person made an allegation of harassment against C, and this gave rise to a report by the IMO into C’s behaviour. The report concluded that there was no strong evidence of any particular serious sexual misconduct against C, but there was some level of harassment and bullying. In relation to allegations of favouritism, the investigators found that there were frequent instances, and some level of abuse of power, particularly in the case of the other complainant when his contract was not renewed, despite a verbal promise that that would occur. The IMO decided that C would be censured and would not be engaged as a consultant following retirement.
In early 2014, D activated four websites concerning C. The website considered in detail by the Judge contained numerous references to and photographs of C. It referred to her as a “confirmed abuser” and it also said she was a “long term abuser”. It alleged that C “with continuous and deliberate events of abuse of power and abuse of authority and cruelty… caused the defendant a serious injury…”. D also publicised the websites by distributing leaflets outside the IMO.
D did not appear and was not represented.
Should C be awarded an interim injunction in harassment to restrain the publication of the websites by D? In particular:
(1) Did the publication of the websites amount to harassment for the purposes of the Protection From Harassment Act 1997 (“PHA”)?
(2) Was such an order appropriate even though the harassment involved statements that D might seek to justify at trial?
Granting the interim injunction:
(1) The continuous publication of the websites on the internet amounted to harassment for the purposes of the PHA, Law Society v. Kordowski  EWHC 3185 QB,  EMLR 2 followed. C was more than likely to establish at trial that D ought to have known that it would alarm her and cause distress.
(2) The publication also satisfied the additional elements of oppression, persistence and unpleasantness which Elizabeth Laing J identified in Merlin Entertainments v. Cave  EWHC 3036 (QB), 2015 EMLR 3. That is because the website, in particular the IMO impunity website, contains the repeated references to C’s abuse. The photographs identified C and were taken in breach of confidence. C had a reasonable expectation of privacy not only in relation to the photographs, but also in relation to the internal enquiry by the investigators of her behaviour. Albeit that there was an internal inquiry report which did sanction C, the version of events on the website, in particular the IMO impunity website, was exaggerated and sensationalised beyond recognition
This was a straightforward application of the law relating to harassment by online publication which is now relatively well-established. However, the Claimant had an extra hurdle to overcome because the material on the websites had at least some basis in a report which had made limited adverse findings about her conduct. In the circumstances of the extravagant way in which these findings were presented on the websites, she was able to point to the extra elements of oppression, persistence and unpleasantness which enabled her to overcome the objection that the Defendant might seek to justify his allegations at trial. The decision emphasises the higher test that a Claimant may face where the harassing publications complained of have a basis in truth.