Reference:  EWHC 1296 (QB)
Judge: Tugendhat J
Date of judgment: 24 May 2012
Summary: Misuse of private information – Harassment – Breach of statutory duty pursuant to s.85 of the Copyright Designs and Patent Act 1988 – Protection from Harassment Act 1997 - Claim for damages and injunction – Article 8 - Article 10 - Freedom of Expression
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Appearances: Alexandra Marzec (Defendant)
Instructing Solicitors: Mishcon de Reya for the Claimant; RPC LLP for the Defendant
C was a seasoned journalist and communications officer. At the time of the 2010 general election, she was campaigns officer for the Electoral Reform Society, but she was on secondment from that post to work as the press officer to Chris Huhne’s election campaign. Mr Huhne was at that time a member of the shadow cabinet and was a married man. Following the general election in May 2010, Mr Huhne kept his seat and became a member of the cabinet. In June 2010, it emerged in the press that Mr Huhne and C had been having an affair. The Mail and the Mail on Sunday published articles about the affair which disclosed information about C, including the fact that C herself was in a civil partnership with a woman and had deceived her civil partner. C complained about words published in 8 articles published by D in June and July 2010, claiming that the words constituted a misuse of private information because they referred to her sexuality, her relationship history, details of private conversations, and information about sex; and also that they attacked her dignity and autonomy in regard to her sexuality, and reduced her to a crude stereotype. She also complained that two photographs of her, taken on the day of her civil partnership ceremony, breached her moral rights pursuant to s.85 of the Copyright Designs and Patent Act 1988.
On the second day of the trial, C applied to amend her claim to rely on a further cause of action pursuant to the Protection from Harassment Act 1997, on the basis that the 8 articles, 39 further articles published between June 2010 and October 2011, and a number of readers’ comments published by D relating to some of those articles, had contained published words which constituted a course of conduct amounting to harassment. (The claim was later amended to rely on further articles, bringing the total to 63; and further readers’ comments, totaling 152.) In the vast majority of the words complained of by amendment, C complained of the fact that she was bisexual, although she also complained about 6 sets of words which she alleged attacked her sexuality or criticised her appearance.
(1) Did the course of conduct specified in the claim amount to harassment? If so, was it reasonable?
(2) Did C have a reasonable expectation of privacy in the words complained of or the photographs?
(3) If so, were they published in the public interest?
(4) If C established misuses of private information and/or breach of statutory duty and/or harassment, how much damages should be awarded and should the court impose an injunction?
(1) D’s actions in publishing the words complained of were not so unreasonable that it would be necessary or proportionate to sanction them, and D had not harassed C within the meaning of the PHA 1997. The references to C’s sexuality were not pejorative, and even though the refrences to C’s clothes and appearances were insulting and offensive, D ought not to have known that the language used was sufficiently distressing to be considered oppressive or amount to harassment.
(2) C did not have a reasonable expectation of privacy in the information complained of because (a) C was not a purely private person, by virtue of her personal and professional involvement with Chris Huhne and what she had disclosed in the past, and her rights to privacy has become limited; (b) it was not arguable that C had a reasonable expectation of privacy in the information that she was bisexual, given the fact of her civil partnership and her affair with Mr Huhne; (c) information alleged to reduce C to a stereotype or convey homophobic prejudice did not convey any meaningful information about C; (d) other information complained of (concerning sexual history, information about sexual intercourse, and contents of private conversations) added little to the claim and were not sufficiently serious to pass the threshold of seriousness necessary for a finding of a misuse of private information.
(3) The information about C’s sexuality the information was published in the course of articles that were in the public interest and the information was within the range of what an editor could in good faith regard as relevant of the story.
(4) In any event, the distress suffered by C was not caused by the course of conduct specified in the claim or the publication of the words complained of but by the publication of true and defamatory articles about her, and C had not made a claim in defamation.
This is only the second full trial of a claim of alleged harassment by publication in the media, and to that extent the findings of the judge as to the threshold of seriousness that has to be reached before harassment is established are significant. In particular, the court noted that the test for harassment is an objective one and a claim could not be established merely because a person was offended or insulted by words written about them. In this respect, the judge’s findings were an application of the Court of Appeal’s observation in Thomas, that the fact that articles cause foreseeable distress to an individual does not, of itself, amount to harassment of that person.