Major new decision dismissing claim of media harassment

Only conscious or negligent abuse of media freedom will do to show harassment

The High Court has held that it is necessary for claimants to show a conscious or negligent abuse by the media of their rights to freedom of expression in order to succeed in a claim for harassment by repeated newspaper publications.

Mr Justice Warby today handed down judgment following the trial in Sube v News Group Newspapers & Express Newspapers (No 3) finding in favour of both defendants.

The claim was for harassment under the Protection from Harassment Act 1997 (‘PHA and under the Data Protection Act 1998 (‘DPA’). An claim for libel had been struck out earlier.

The claim concerned a series of articles published by the Defendants in The Sun and separately, Daily Express and the Daily Star online about the Claimants. In 2016, the Claimants, a married couple with (then) 8 children, were in dispute with Luton Council about the adequacy of the housing which had been offered to them. There was extensive national newspaper coverage, some of which was critical of the Cs, including for allegedly rejecting a five-bedroom house as too small.

This is only the second claim of harassment against the professional media to come to trial in England & Wales following Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB)  (a claim brought by Carina Trimingham, the partner of former Cabinet Minister Chris Huhne).

In a decision strongly supportive of principles of freedom of expression, Mr Justice Warby dismissed the claims against both defendants observing that 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. It must be careful to ensure that its approach is compatible with any human rights engaged by the particular facts of the case.

The Court concluded that two publications in single edition of a newspaper counted as a single act for the purposes of harassment – as opposed to two separate acts. Further, groups of articles that had been prompted, on their face, by new events and new information and which had different content could not be viewed as a single course of conduct.

The Court also commented that there had been a lack of rigour and discipline in the analysis and presentation of the claimants’ case. It was noted that although the Court must not be overly rigid or formalistic in the approach to pleading requirements, 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.

5RB’s Christina Michalos QC acted for Express Newspapers, the Second Defendant.

A 5RB case report can be found here.