Harassment by publication: has the threshold been raised? Should the rule against prior restraint apply to interim injunctive relief?
In Jagwani v Alles  EWHC 2887 (QB), Mr Justice Murray refused the Claimant’s application for an interim injunction to prevent alleged harassment by the Defendant through her publication of defamatory content. The judgment raises a number of interesting legal issues about the threshold for establishing harassment and the applicability of the rules against prior restraint in claims for harassment by publication.
The claimant, Mr Kabir Kumar Manohar Jagwani, met a lady named Ms Kirwan Parwani on a dating app and subsequently married her in August 2017. The marriage, according to Mr Jagwani, soon became fraught with difficulties and on 1 April 2018 he announced his intention to separate from his wife and apply for divorce. The main bone of contention appeared to be over where the couple should reside: Mr Jagwani contended that he could not live away from his mother, father and uncle, who were all in poor health and required his care, while Ms Parwani insisted they should have separate accommodation. To complicate matters, Ms Parwani resided with her parents in India and required a spousal visa to live permanently in the UK.
On 11 July 2018, Mr Jagwani was notified by a police officer in India that Ms Parwani had the day before filed a complaint against him there alleging that he had deserted her and abused her physically and psychologically. Subsequently, Ms Parwani alleged, amongst other things, that Mr Jagwani had raped her. Mr Jagwani denied all of the allegations made against him.
The defendant, Ms Poonam Joshi Alles, is a journalist and campaigner for women’s rights, particularly those of Indian women. In or around September 2018, she started to rally on behalf of Ms Parwani. Her campaign included the following acts, which Mr Jagwani said amounted to harassment of him:-
- On 16 September 2018, Ms Alles telephoned Mr Jagwani and alleged, inter alia, that he had deserted Ms Parwani after raping and abusing her.
- Following the telephone call, Ms Alles sent Mr Jagwani a text message stating that if he failed to “resolve this amicably” she would stand outside his office and home, protesting for the full rights of Ms Parwani.
- On 6 July 2019 Ms Alles published an article on the website of her (now dissolved) volunteer organisation called Indian Ladies in UK CIC. This purported to give Ms Parwani’s account of her marriage and was headed “Indian bride, used, abused and discarded by East London school teacher” (“the July 2019 Article”).
- Ms Alles shared the July 2019 Article on Twitter and Facebook and posted or referred to it on other occasions between 6 July and 14 August 2019.
- Mr Alles tagged the July 2019 Article to the Twitter account of the school where Mr Jagwani was Assistant Head Teacher, and then, when he managed to have the school take down the link, she posted online about her outrage that the school was supporting him.
- The July 2019 Article was republished by the Indian Express and at least four other websites, as well as at least one other Facebook group targeting the Indian diaspora.
- Ms Alles said in a social media post on 21 July 2019 that Mr Jagwani had “cheated and dumped” Ms Parwani and in a social media post on 26 July 2019 said that he was a “coward and a liar” who was “running scared”.
- On 14 August 2019, Ms Alles posted for the first time the allegation that Mr Jagwani had raped Ms Parwani for three days.
- Mr Jagwani also claimed that that Ms Alles incited protests and violence against him. By way of example, he referred to a social media post by Ms Alles on 6 July 2019 in which she included a quote from Margaret Atwood’s, ‘The Handmaid’s Tale’:
"#JustWaitWeAreComingForYou Here's a quote from The Handmaid's Tale ….
'And here's what we do … We watch them, the Men. We study them, We feed them, we please them.
We can make them strong or weak. We know them that well.
We know their worst nightmares and with a bit of practice that's what we'll become … the NIGHTMARES!
One day when we're ready, we're coming for you … just wait!'
It immediately connected me to the women I work with, who have been dumped by their 'absconding nri men'. Men who think they will never have to pay for their sins … they will never be caught …. To all those men I'd say we are coming for you!!!! #NRINightmare"
Mr Jagwani stated that as a consequence of Ms Alles’s campaign he has been taunted by students at his school who called him a “woman abuser” and “woman beater”.
Whilst Mr Jagwani issued claims for defamation and harassment, it is not clear from the judgment whether he was seeking interim injunctive relief in respect of both causes of action (Murray J states “… To the extent that the Claimant is seeking an interim injunction to restrain continued or future publication of defamatory statements…(our emphasis added)). This is potentially significant: interim injunctions for harassment are relatively common, whilst interim injunctions for defamation are exceptional. The Claimant may have unwittingly presented his application as the latter by seeking an order that restrained the defendant from “publishing further defamatory material”. The knock-on effect of this appears to be application of the high hurdle required in defamation cases to a harassment claim.
Decision and analysis
Mr Justice Murray stated “… I must refuse that part of the application [an interim injunction to restrain continued or future publication of defamatory statements] on the basis of the rule in Bonnard v Perryman. I do not consider, having reviewed the Claimant's evidence, that a defence by Ms Alles based on truth and/or honest opinion is bound to fail.”
The rule in Bonnard v Perryman  2 Ch 269 – the rule against prior restraint - is that where the defendant contends that the words complained of are true, and asserts that he will plead and seek at trial to prove the defence of truth, the court will not grant an interim injunction, unless, exceptionally, the court is satisfied that such a defence is one that cannot succeed.
Ms Alles had made clear in correspondence with the Mr Jagwani’s solicitors that she intended to raise defences of truth and honest opinion. She had failed, however, to serve evidence in accordance with the Court rules and was treated to have filed no evidence at all. Murray J decided to rely only on the evidence provided by Mr Jagwani. This is important because earlier cases had suggested that witness evidence was necessary in order to resist an application for an interim injunction in libel. In Sunderland Housing Company Ltd & Anor v Baines & Ors  EWHC 2359 (QB), for instance,
Mr Justice Eady stated:-
“It seems to me at least right for a defendant who seeks to resist an injunction against publication of defamatory words to identify the defamatory meaning or meanings which he intends to justify, and also to state in a witness statement verified by a statement of truth that he believes in the truth of the words in that meaning or those meanings. That, it seems to me, must be the very minimum. Of course, there is nothing to prevent a defendant, if he or she wishes, from adducing evidence to show the supposed strength of a proposed plea of justification but that is not something which is a necessary ingredient.
With respect to Davis J. it is not necessary in order to resist an injunction to produce "cogent evidence", although that phrase was used in the course of the last hearing when Davis J. was discussing the matter before giving his ruling, I think with Mr. Baines. Where there are many and various defamatory allegations, some of which are undoubtedly very serious, alleging criminal misconduct and matters undoubtedly of great public interest (which, in a sense, cuts both ways) it seems to me that it must be right that a defendant should be required at least to identify the extent to which he proposes and intends to justify. It will not do simply to put in a blanket statement of intention or hope and leave it at that. It is, in my judgment, too cavalier.”
(our emphasis added)
Subsequently, in ZAM v CFW & Anor  EWHC 476 (QB), Mr Justice Tugendhat held that in the face of a statement of the Claimant that the words are untrue it was not enough for the defendant merely to assert that the words are true. In this case, the Court had received a fax which took the form of a statement signed by X (seemingly the Defendants’ agent) which contained bare assertions pertaining to the truth of the allegations but, according Mr Justice Tugendhat, was “devoid of the sort of detail” that could give “rise to a sufficient basis upon which a defence [of justification as it then was] could be formed” The extent to which Ms Alles went beyond this in her correspondence with Mr Jagwani’s solicitors is not apparent from this judgment. However, neither Sunderland Housing or ZAM are referred to in Murray J’s judgment, nor it is known whether they were brought to his attention. Both were, of course, first instance decisions which would not have been binding on Murray J, but would have likely been very persuasive, not least because they had been delivered by two distinguished media law judges.
Perhaps surprisingly, Murray J stated that the conduct did not “even come close” to the required level of seriousness that would “sustain criminal liability under section 2 [of the Protection from Harassment Act 1997]” (Majrowski v Guy's and St Thomas's NHS Trust  UKHL 34). Nor was he of the view that the July 2019 Article and Ms Alles’s related social media comments were “attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve” (Thomas v News Group Newspapers Ltd  EWCA Civ 1233).
The Claimant’s barrister unsuccessfully sought an adjournment at the start of the hearing so that a specialist media law barrister could attend in his place. It is unknown whether the application might have resulted in a different outcome had a specialist barrister appeared, but a number of issues arise:-
- Truth is not a defence to a harassment claim per se. Rather the question is whether the conduct is “reasonable in all the circumstances” (if it is, by virtue of section 1(3) of the Protection from Harassment Act 1997, it is not harassment). Whether conduct is reasonable is often said to turn on whether it is unduly oppressive. So whilst the rule in Bonnard v Perryman is not completely irrelevant, it is not a neat fit for harassment claims. As Laing J said in Merlin Entertainments LPC & Ors v Cave  EWHC 3036 (QB):-
“Harassment can take different forms. Where the harassment which is alleged involves statements which a defendant will seek to justify at trial, there may be cases where an interim injunction will be appropriate. These are cases where such statements are part of the harassment which is relied on, but where that harassment has additional elements of oppression, persistence or unpleasantness, which are distinct from the content of the statements. An example might be a defendant who pursues an admitted adulterer through the streets for a lengthy period, shouting “You are an adulterer” through a megaphone. The fact that the statement is true, and could and would be justified at trial, would not necessarily prevent the conduct from being harassment, or prevent a court from restraining it at an interlocutory stage. The same point would apply to Howlett, if the banners flown from aircraft for several years over the Claimant’s house, instead of conveying abuse, had set out truthful allegations. I therefore reject Mr Strauss’s submission that the rule in Bonnard v Perryman is in and of itself complete answer to an application for an interim injunction in a harassment case, where the harassment consists of repeated statements which the defendant will seek to justify at trial. This conclusion appears to be consistent with the recent decision of Carr J in Brand v Berki  EWHC 2979 (QB), to which the parties referred me after the hearing.
Understandably, claimants have placed heavy reliance on Merlin. In 2019 Mr Justice Nicklin provided some clarification in the case of Khan (formerly JMO) v Khan (formerly KTA)  EWHC 241 : “If the applicant has a complaint about what has been said, then it is to the law of defamation (for example) that s/he must turn. For harassment, the harassing conduct must come more from the manner in which the words are published than their content.”
As mentioned above, the Claimant’s decision to seek injunctive relief specifically prohibiting the publication of defamatory statements (rather than say derogatory, offensive or abusive allegations) might have been a tactical mistake which meant that it was appropriate to strictly apply the rule against prior restraint.
- Murray J set out the relevant test for granting interim relief under section 12 of the Human Rights Act 1998, namely that “[section 12(3)] …No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed” and “[section 12(4)]…The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic… (or to conduct connected with such material) to the extent which the material has, or is about to, become available to the public; or it is, or would be, in the public interest for the material to be published…”. It is arguably the broader test in section 12(3) and (4) that the Court should consider in “harassment by publication” cases, rather than the strict rule against prior restraint.
- When setting out the law, Murray J referred to the well-established rule that “a restriction on freedom of expression may be justified if it conflicts with another fundamental right of an affected person, such as his or her right under article 8 of the ECHR to respect for private and/or family life”. To resolve a potential conflict between freedom of expression rights on the one hand, and privacy rights on the other, the Court will carry out “the ultimate balancing test” which requires an “intense focus” on the comparative importance of the specific rights being claimed in the individual case and the justifications for interfering with them. Despite referring to this test when setting out the law, Murray J does not expressly set out how he applied it. The allegations against Mr Jagwani relate to what is said to have taken place during Mr Jagwani’s marriage with Ms Parwani. While these matters had been reported to the police in India, Mr Jagwani had not been charged. It seems therefore that it would be difficult to argue that his Article 8 rights were not engaged at all. The fact that Mr Jagwani contended that the allegations were false would not change this position. In the seminal case of Ash & Anor v McKennitt  EWCA Civ 1714, the Court of Appeal held “The question in a case of misuse of private information is whether the information is private not whether it is true or false.”
Murray J might well have concluded that Ms Alles’ (and Ms Parwani’s) freedom of expression rights carried more weight than Mr Jagwani’s privacy rights, but this is not necessarily clear from the judgement.
- In respect of the quotes from “The Handmaid’s Tale” Murray J stated “I do not consider it can be viewed as a serious incitement to violence against Mr Jagwani, given that it does not mention him and viewing it with common sense and in context.” The Judge is of course right when he states that this quote does not mention Mr Jagwani expressly. But the very next Tweet by Ms Alles, published later on the same day, contained a link to the July Article. The Tweet itself contained a photograph of Mr Jagwani and Ms Parwani and included the following text: “East London school teacher Kabir Jagwani, dumped his 3 day bride after her family refused to cough up 200K dowry.”. One likely consequence of the juxtaposition of these two social media posts would be that many internet users who reviewed Ms Alles’ social media accounts would understand Mr Jagwani to be at least one of the men referred to in the text from “The Handmaid’s Tale”.
- As stated above, part of Mr Jagwani’s complaint was that he had been taunted by students at his school, who had called him a “woman abuser” and a “woman beater”. The fact that students at Mr Jagwani’s school were aware of the allegations against him was perhaps not surprising given the lengths to which Ms Alles had gone to ensure that her allegations had been disseminated as widely as possible. As stated above, this included tagging the July 2019 Article to the Twitter account of the school where Mr Jagwani worked. Such targeted publication by Ms Alles could easily have been construed as an act to incite, provoke or encourage others to taunt Mr Jagwani. Insofar as the school needed to know the allegations, Ms Alles could have conveyed them privately (e.g. by email) which would have been less likely to cause damage to Mr Jagwani. Ms Alles’ course of conduct must be considered as a whole for the purposes of the harassment claim brought against her, but it is difficult to regard this as anything other than an egregious act which – when considered in conjunction with the other harassing acts complained of – might be expected to satisfy the test imposed by section 1 of the Protection from Harassment Act 1997.
It may be that the Claimant made a rod for his own back here in framing the interim relief sought in terms that prohibited defamation. There is also a question over whether it is desirable or necessary to consider the rule against prior restraint at all in genuine publication by harassment claims, given harassment is a different beast to defamation and the existence of the broader test under Human Rights Act 1998 that requires the court to consider freedom of expression.
Notwithstanding these issues, the decision in this case that the conduct could not amount to harassment begs the wider question as to how serious conduct must be before it crosses the threshold from the unreasonable and unattractive, which the Courts will by and large permit, to the unacceptable and oppressive, which the Courts are likely to find amounts to harassment. There will of course be cases, such as Oliver v Shaikh  EWHC 3389 (QB), where there can be little dispute the conduct complained of amounts to harassment, but most cases will not be so clear cut. It is surprising that this case did not at least fall into the latter category. Instead the conduct complained of was described as not “com[ing] close” to the threshold of seriousness required to succeed with an application for an interim injunction to prevent harassment. If that is correct, then we could be seeing fewer applications for interim injunctive relief in harassment by publication cases in the future.
Articles are intended as an introduction to the topic and do not constitute legal advice.