Sube v News Group Newspapers Ltd & Express Newspapers (No 3)
Reference:  EWHC 1125 (QB)
Court: High Court, Queen's Bench Division
Judge: Warby J
Date of judgment: 7 May 2020
Summary: Harassment - Protection from Harassment Act 1997 - Harassment by Media Publications - Data Protection Act 1998 - s.10 Data Protection Act 1998 - s.14 Data Protection Act 1998
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Christina Michalos KC (Defendant)
Instructing Solicitors: Express Newspapers Legal Department
The Claimants (Cs) were a married couple with 9 children who were French and black. In 2016, they were in dispute with Luton Council about the adequacy of the housing which the Council had offered the family. On 6 September 2016, an article about their dispute appeared in a local newspaper, the MK Citizen. Following that article, there was extensive national newspaper coverage some of which was critical of the Cs including for allegedly rejecting a five bedroomed house offered by the Council as too small. The two Defendants had published a number of articles about the Cs in their respective newspapers and online – The Sun (D1) and the Express and the Daily Star (D2). D1 had published 7 articles in The Sun/online. D2 had published 12 articles in total – 5 articles under the Daily Star title and 7 articles under the Express title.
Readers posted comments (“Posts”) in the comment sections of the newspaper websites some of which were highly offensive. Cs’ case was that some of the Posts amounted to Cs sensitive personal data.
The Cs issued proceedings in 2017 for libel and harassment in respect of both the Article and the Posts and also brought a claim under the Data Protection Act 1998 (“DPA”) in respect of the Posts only. In 2018, the libel claim was struck out by order of Warby J: see Sube v News Group Newspapers & Express Newspapers (No 1) and (No 2) (Cummulative Harm)
This was the trial of the harassment claim brought under the Protection from Harassment Act 1997 (‘PHA’) in respect of the Articles and the Posts and the DPA claim in respect of the Posts. The DPA claim was brought under s 10 of the DPA, which confers a “right to prevent processing likely to cause damage or distress”, for compensation and for the remedies of blocking and erasure under DPA s 14.
The Ds each contended that their respective articles did not amount to harassment under the PHA or alternatively was reasonable conduct within the meaning of s.1(3)(c) of the PHA.
- Were the acts of each respective defendant complained of (a) ‘a course of conduct’ by the defendant which (b) amounted to harassment of one or both of the claimants and which (c) that defendant knew or should have known amounted to such harassment?
- To what extent, if at all, is the publication of readers’ Posts on a defendant’s website to be treated as “conduct” of the defendant, for the purposes of s 1 PHA?
- If there was a course of conduct that prima facie amounted to harassment, was it one that “in the particular circumstances … was reasonable” within the meaning of PHA, s 1(3)(c)?
The DPA claims
- To what extent did the Posts involve the processing of “sensitive personal data” within the meaning of DPA s 2?
- Had the claimants made out a case for relief under DPA s 10(4)?
- Were the claimants entitled to advance any claim going beyond one for relief under DPA s 10?
Finding for both Defendants and dismissing both the harassment and DPA claims:
On the Harassment Claim:
- Nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment by media publication: [68(5)]
- The court’s assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant: [68(4)]
- In cases of harassment alleged to be by media publication, the Court must be especially mindful of the threshold of gravity required before a finding of harassment can be made; and it must be careful to ensure that its approach is compatible with the human rights engaged by the particular facts of the case: 
- There had been a lack of rigour and discipline in the analysis and presentation of the claimants’ case. Courts must not be overly rigid or formalistic in their approach to pleading requirements. But the rules about statements of case play a fundamental role in promoting the overriding objective of a fair trial at proportionate cost. It would be wrong to rule on allegations that were not properly notified in advance, in accordance with the rules, in sufficient detail to enable the defendants to prepare to meet them particularly given the gravity of some of allegations: 
- Neither claimant had succeeded in proving that either defendant was guilty of a course of conduct amounting to harassment. The standard of proof was the civil standard, but the task that confronts the claimants is to establish conduct that represents an abuse of media freedom so serious that it deserves the label of criminality. That means that the burden on them is a heavy one. They had not discharged that burden: .
- The articles did not form a course of conduct together. They fell into two groups each initiated by new information. The second group was quite separate and distinct. Two publications in single edition of a newspaper counted as a single act for the purposes of harassment – as opposed to two separate acts.
- It was not necessary or helpful to address the rather abstract and potentially complex question of whether the reader posts on the defendants’ websites amounted as a matter of law to “publication” by that defendant, or publication for which it is responsible.
- It was not reasonable to maintain that the content of the Articles was designed to stir up racial hatred, in the sense that it was likely to do so. That conclusion cannot be drawn from the existence of a handful of reader comments which expressed unpleasant or racist sentiments.
- The conduct to be considered in relation to the reader comments/Posts was unwittingly allowing or facilitating the communication by some readers to some other readers of a relatively small number of Posts, some of which were racist and offensive to the claimants. Whatever might be said about that conduct, and the adequacy of the controls put in place by the defendant, this was not to be properly regarded as part of a course of “targeted” conduct by the defendant, that has an “oppressive” character, and is criminal in character: .
- A plea of falsity in respect of some of the aspects of the articles were false was struck out: . The Cs had been warned in the First Judgment that was a “loose end”, not anchored to any pleaded claim, and liable to be struck out unless it was amended: see the First Judgment at , , . It was not amended and was thus struck out.
On the DPA claim:
- Although the claim under DPA s 14 (for blocking and erasure) was still being floated at the start of the trial, by the end of the trial, the claimants had made clear that their case was confined to claims for relief in respect of breaches of s 10. The Court observed “That was a wise decision: there has never been any adequately pleaded claim under DPA ss 13 or 14.”: .
- As regards the DPA claim, the cause of action had not accrued. Section 10(4) DPA provides that a court may order a data controller to take steps to comply with a notice served under s.10(1) (notice to cease processing). Section 10 (3) gives the data controller 21 days to respond. The Claimants’ notice under s.10(1) was served on 20 December 2017; the Particulars of Claim were served on 28 December 2017. Accordingly, the 14-day period specified in the s 10 notices had not expired by the time the Particulars of Claim were served and the cause of action relied on had not accrued either at the date of the statement of case or when the claim form was issued. Even the amended claim form contained no claim for relief under s 10(4); the only DPA claim was for damages: see .
- It was therefore unnecessary to resolve the question of whether the Posts were ‘sensitive personal data’. The Court observed that in any event this part of the case was inadequately pleaded and procedurally unreasonable. It was a breach of the rules of pleading, “which imposes an unacceptable burden on the defendants and the Court, and obstructs the due administration of justice.” This would have been a sufficient basis on which to dismiss this seemingly unnecessary ingredient of the claim: [61(1)]
This is only the second trial of a harassment claim brought against professional media organisations in England and Wales. It is significant because of the strong dicta that nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment by media publication. This may perhaps be unsurprisingly given the serious risks of a chilling effect by findings that any given series of articles amounts to harassment. However, claimants seeking to bring claims for harassment by media publication now face a high hurdle.
There is a great deal of interest to media practitioners in this decision which is lengthy but significantly builds on the existing law of harassment. Other issues in the case of interest include (i) an attempt by the Claimants to rely on an ECRI report to support an allegation of racists tendencies by tabloid media which the court found to be illegitimate. The report was found to be not admissible in any event as being either expert evidence for which no permission was sought or granted, so that CPR 35.4(1) applies, or it is lay opinion evidence which does not fall within any of the exceptions to the general ban on evidence of that kind; (ii) various observations about the important of pleading requirements and the relevance of cross-examination and (iii) whether the Claimants had approached the media themselves and put the matter into the public domain themselves and the effect of that.