Harassment by publication: how private and/or defamatory material can be protected

In GYH v Persons Unknown [2017] EWHC 336, the claimant, a transgender woman who works as an escort, was granted an interim injunction to prevent, amongst other things, the publication of information which purported to relate to her private life.

The information in question related to the claimant’s sexual life, her physical and mental health and included a false allegation that she had HIV/AIDS.  This information was posted on websites relating to the provision of sexual services for money, and to sex and pornography specifically relating to transgender women. There could be no dispute that the purported information was extremely private in nature. The allegation that the claimant carried on business as an escort providing sexual services even though she has practised unsafe sex and had contracted a sexually transmitted disease was also grossly defamatory such that, post-Lachaux, the claimant would have been unlikely to need to adduce evidence of serious harm to meet the threshold imposed by section 1 of the Defamation Act 2013 (see our blog here).

The claimant thus had prima facie claims for defamation and misuse of private information in addition to harassment.  Why, then, did she assert only the latter as her cause of action?

Selection of a cause of action will always be a highly fact-sensitive exercise and must be considered in light of the claimant’s objectives.  A claim for harassment in publication matters may, however, have the following  (non-exhaustive) advantages over defamation and/or privacy claims.

• In a harassment claim,  it is possible to prevent publication of defamatory material at an interim stage.  The ‘defamation rule’ established in Bonnard v Perryman means that that an interim injunction will not be granted restraining publication of allegedly defamatory material if the defendant proposes to justify the publication at trial, unless it is plain that the plea of justification is bound to fail.  It is often the case that defendants will refuse to remove defamatory material at a pre-action stage because they believe – rightly or wrongly -  that what they have published is true and will defend it on that basis until trial.  This means that in many libel cases an interim-injunction will not be a viable option for a claimant (that said, exceptional circumstances have allowed claimants to obtain interim-injunctions in defamation in the recent cases of  Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars) [2017] EWHC 2474.
• While a “course of conduct”  (i.e. conduct on at least two occasions in relation to a victim of harassment) is required to justify an award of damages in a harassment claim, an interim-injunction can be still granted in circumstances where the tort has not already been committed.  In other words, it is simply sufficient to establish for the purposes of obtaining an injunction that the defendant may commit the tort of harassment unless restrained (see, for instance, Al Hamadani v Al Khafaf and others [2015] EWHC 38).  Threats of multiple publication of defamatory material would give rise to a course of conduct and could therefore, in appropriate circumstances, entitle the claimant to seek urgent injunctive relief.
• Unlike in defamation claims, truth is not a defence to a harassment claim (although depending on the circumstances it may be relevant to the existence of one of the statutory defences under s 1 (3) of the Protection from Harassment Act 1997).   Harassment actions focus more on the perpetrator’s conduct to determine whether it is sufficiently oppressive and unacceptable to sustain criminal liability.  A true allegation could be repeated to such an extent that the conduct crosses the boundary from the regrettable to the unacceptable.  As Mrs Justice Carr stated in Brand v Berki  [2014] EWHC 2979 (QB):-

“…centrally for present purposes, whether or not the Defendant’s allegations are true is not the ultimate issue at point here. What is at issue is the (unwarranted) manner of her dissemination of her extremely serious allegations about the Claimants. The sheer scale, content and variety of publication by the Defendant makes her conduct unreasonable in all the circumstances. Her own alleged perception of reasonableness cannot assist her.”

• Harassment does not require the applicant to demonstrate that they have a reasonable expectation of privacy in respect of the information in question.  In misuse of private information claims, a person’s previous conduct may be relevant to whether they have a reasonable expectation of privacy in respect of the information they are seeking to protect.  It will often be argued that someone who makes information publicly available about themselves has no right to prevent others from doing the same.  If it is established that the claimant has no reasonable expectation of privacy then a claim for misuse of private information is bound to fail.  While the existence or otherwise of an expectation of privacy may be relevant to the statutory defences in a harassment claim, the failure to show that a claimant has such an expectation will not vitiate the claim.

While the above advantages will no doubt be taken into consideration prior to issuing a claim, the courts have made clear that the claimants should not engage in “cause of action shopping”.   If the “nub” of a claimant’s claim is a complaint of libel, then the claimant will not be able to circumvent the “defamation rule”.   In GYH, however,  Warby J accepted that the “nub” of the claimant’s claim was a genuine complaint of harassment and found that she was more likely than not to succeed at trial.  Accordingly, he granted an interim-injunction.

Find out how Brett Wilson LLP can assist you if you have been defamed or harassed, or your private information has been misused.