Mr Justice Warby has remotely dismissed a claim for damages and an injunction for media harassment and data protection breaches relating to a series of articles published by The Sun and the Daily Star. The judge held that the reporting was “colourful” but that the much higher bar of “conscious or negligent abuse of media freedom” must be met for a finding of harassment by a media publisher.

The claim arose out of a series of articles published in 2016 both online and in print editions of The Sun and the Daily Star. The articles related to the fact that the claimants were in a dispute with Luton County Council about housing for them and their (at the time) eight children. Some of the coverage was critical of the claimants, including the allegations that they dismissed a five-bedroom house for being too small and were put up by the council in a £160 a night hotel. The coverage also resulted in a number of reader comments which were critical and in some cases racially abusive, and these formed part of the claim.

The issues considered by Mr Justice Warby included:

  1. Whether the publication of reader comments constituted “conduct” by the defendants under The Protection from Harassment Act 1997 (the PHA);
  2. Whether the posting of the articles by the defendants involved a “course of conduct” which amounted to harassment, and which the defendants should have known amounted to harassment; and
  3. If publishing the articles did amount to harassment, was the course of conduct reasonable as defined by the PHA?

As this was only the second trial for harassment by publication, Mr Justice Warby expressly confirmed that “the tort and the crime can be committed by a course of conduct consisting of publication in or by the conventional news media”.

In relation to issue 1 above, reader comments, he said that the conduct of the defendants 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”. However, that did not create conduct which constituted criminal behaviour. He also considered that a large amount of distress suffered by the claimants was due to coverage published by the Daily Mail, rather than by the defendants.

On issue 2, Mr Justice Warby held that two publications in a single edition of a newspaper counted as a single act for the purposes of harassment rather than two separate acts. He also decided that the articles published by both defendants fell into two distinct groups, and each group focused on a different subject matter, with publication prompted by different events. The first group was published in relation to the claimants’ dispute with the council, and the second group was published after they had been provided with housing. With that in mind, they could not be viewed as a single course of conduct.

On issue 3, the judge said that he would, if necessary, hold the conduct of the defendants as reasonable within the meaning of the PHA. In other words, it was a legitimate exercise of press freedom that did not interfere so gravely with the rights of the claimants that it deserved to be categorised as a crime and a tort.

The judge explored the tension between the competing rights under Article 8 and Article 10 of Schedule 1 to the Human Rights Act 1998 (which incorporates the rights set out in the European Convention on Human Rights). Article 8 protects the right to respect for the claimants’ private and family life. Article 10 protects rights of the defendants to convey information and ideas, and for the rights of the public to receive information and ideas.

In addressing these competing rights, Mr Justice Warby held that “nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment” by the publication of newspaper articles, and that the heavy burden of proving so fell to the claimants, which they failed to establish.

He said that the reporting by The Sun was reflective of what would be of proper interest to its readers, and was “done in a colourful fashion typical of tabloid journalism, of which some may disapprove, but it did not represent an abuse of press freedom that entered the realm of harassment”.

While conscious of the tactics of tabloid journalism and the distress it can cause, this judgment is strongly supportive of the principle of press freedom, with potential claimants needing to cross a high hurdle to make out a claim for harassment by the media.

This article was written by our paralegal Palomi Kotecha




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