Full case report

Shakil Khan (formerly JMO) v Tanweer Khan (formerly KTA)

Reference [2018] EWHC 241 (QB)
Court Queen's Bench Division, Media and Communications List

Judge Nicklin J

Date of Judgment 15 Feb 2018


Summary

Harassment – Protection from Harassment Act 1997 – Interim Injunction – Anonymity – Freedom of Expression


Facts

C was an entrepreneur and investor specialising in technology start-ups, including playing a significant role at Spotify. D was Head of Credit & Emerging Markets Financing of Unicredit Bank, based in the UK. C and D are brothers.

C complained that he was being harassed by the Defendant’s sending large numbers of emails to him and others.

In May 2017, C was interviewed for a podcast, in which he suggested that he had been beaten by his father (who was also the father of D). D believed this to be false.  D also thought that in the podcast C had not given a candid account of his previous convictions.

There was correspondence between D and C’s solicitors about this, which was forwarded to C. D sent further emails to Spotify and to C suggesting the podcast was incorrect, that C had been involved in drug-dealing, and that Spotify had a duty to disclose C’s background to investors. D, under a pseudonym, also emailed a firm of venture capitalists, stating that C had a criminal record. C complained about over 70 emails.

C sought an interim injunction to prevent the alleged harassment. The hearing was heard in private, and anonymity had been granted at an earlier stage.


Issue

(1) Should an interim injunction to prevent harassment be granted?

(2) Should the anonymity order granted to the parties continue?


Held

(1) An interim injunction should not be granted.

As D’s right of freedom of expression was engaged, the test at the interim injunction stage was s.12 Human Rights Act 1998 rather than American Cyanamid Co Ltd v Ethicon Ltd [1975] AC 396. On the evidence as it stood C had not shown that he was likely to succeed in his claim at trial, and so had not met the test under s.12.

The emails did not cross the line from unattractive, even unreasonable, conduct to that of oppressive and unacceptable. The distress caused was largely due to the content of the emails rather than the manner and frequency of delivery. The impact on C did not go beyond annoyance and distress, and appeared to be largely caused by what D had said to third parties, not the manner in which he had said it. While some emails contained language suggestive of threats, these lacked clarity and consistence and had never been acted upon. The underlying theme of the emails was to say to C and Spotify that if they did not disclose information to the market and the regulators, D would. This was not blackmail as it lacked a demand for something to which the person is not entitled.

D may have an arguable defence that the pursuit of the course of conduct was reasonable. This would be a matter to be determined at trial.

Injunctive relief should also be refused on applying the defamation rule, as the ‘nub’ of C’s complaint was one of defamation being advanced under the guise of a harassment claim.

(2) The anonymity order should be discharged.

The claim was one for harassment, not privacy, and it was not in the category of ‘blackmail harassment’. The only ‘threat’ made by D was to disclose details of C’s previous convictions which C himself had generally made public in the previous year. The administration of justice would not be frustrated by C being identified and the proceedings taking place in open court.

Insofar as private or confidential information was raised in the evidence this may justify a more limited and targeted order withholding that information from proceedings in open court, together with a reporting restrictions order under s.11 of the Contempt of Court Act 1981. In the instant case, the hearing of the injunction took place in private and these private details had not been mentioned in open court or in the judgment.


Comment

This judgment highlights the limitations on anonymity when the claim is not brought in privacy but rather (non-blackmail) harassment. As Nicklin J notes, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court. In the event that discrete pieces of evidence in a harassment claim engage Article 8 rights, the way to deal with that is through targeted measures.


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Instructing Solicitors

Sheridans for the Claimant; the Defendant in person.