High Court sets very high bar for harassment by publication claims against the press

In Sube & Anor v News Group Newspapers Ltd & Anor (Rev 1) [2020] EWHC 1125 (QB) the High Court emphatically rejected a claim for harassment against media organisations.  The case highlights the difficulties faced by claimants in harassment proceedings against media organisations, as it must be found that the conduct by the media organisation constituted a conscious or negligent abuse of media freedom. This will, unsurprisingly, be difficult to prove in most cases.

Despite this, the case does not shut the door on claims of harassment by media altogether.  However, it seems that in the majority of cases it will require more than simply publication of a series of articles about a person, even if those even if the articles caused them actual distress.

The case also highlights the difficulties faced by claimants suing media organisations for harassment in relation to reader comments posted on articles online, even when those comments are plainly outrageous or vitriolic.

Background

The claimants sued for harassment in relation to a series of articles published in newspapers The Sun, the Daily Star, and the Daily Express over a two-month period.  The articles all, broadly, related to the two claimants, a husband and wife from France, and their eight children complaining that social housing offered by the Luton Borough Council was inadequate for the family.  The family originally contacted news organisations believing they would get positive media coverage which would help put pressure on the Council, however, ultimately the articles which were ‘indignant’ in tone, with headlines such as ‘Are they Serious?’ and ‘Shameless French family-of-10 demand MANSION’.  The harassment claim, as well as an ancillary Data Protection claim, also related to third party comments posted at the foot of the articles online which were predominantly critical of the claimants, including a number of racist comments.

A previous claim for defamation by the claimants relating to some of the articles had been struck out by Mr Justice Warby in 2018, as the articles and comments were not found to be sufficiently harmful to satisfy the serious harm requirement in section 1(1) of the Defamation Act 2013.

In relation to the harassment claims, the court had to decide-

1. Whether the third-party comments on the articles which had been published by the newspapers should be considered as conduct of the newspapers themselves;
2. Whether all the behaviour of the newspapers amounted to a course of conduct by the newspapers which they should have known amounted to harassment; and
3. If so, whether the conduct was reasonable in the particular circumstances.

Decision

Although the standard of proof for a breach of section 1 of the Protection Against Harassment Act 1997 is to a civil standard, section 2 states provides that any conduct amounting to harassment is not only tortious – it is also criminal.  This, in practice, means that the harassment must be so serious that it would incur criminal liability.

Mr Justice Warby rejected that the third party reader comments posted on the articles were part of the conduct on behalf of the defendants that could amount to harassment.  This is because:-

1. The defendants did not see, and therefore did not know about, the comments complained of until a letter of claim was sent, at which stage the comments were removed; and
2. The comments by third party readers were not considered conduct by the defendants themselves which was targeted at the claimants.

The only actions of the defendants that were relied upon were publication of the articles themselves.  The Court also found that the publication of the articles in early September, and then the publication of articles in late October and early November, were two separate ‘courses of conduct’ for the purposes of harassment.  This was because the first ‘group’ of articles was published many weeks prior to the second ‘group’ of articles, and the second group of articles was prompted by further developments in the story and was not simply a rehash of the original articles.

The Court also considered the fact that the claimants had originally sought publicity to put pressure on the local Council in their dispute.  It was not until this approach backfired and further media organisations published similar stories that they became upset and complained.  It was found that consideration can be given by the Court whether claimants had consented to publicity, which may be relevant to whether or not the conduct of publication constituted harassment.  Although courting media attention is not the norm for harassment cases, this case does show that any such attempts could be fatal to a case of harassment against the media.

Key issues

There are some important reminders in this judgement for claimants considering an action for harassment against a media organisation:

1. A claim in harassment for a series of articles themselves will not succeed unless it can be shown that there is a ‘conscious or negligent abuse of media freedom’.
2. It will be especially difficult to be successful in relation to a claim for harassment where the publications relate to an ongoing story over a course of time, with new information triggering new articles.  It may be easier to succeed in cases where substantially the same story, based on the same information is published over and over again without any break in time, however, this has not been tested.
3. It may be difficult for claimants who have courted media attention to later claim harassment.

Commentary

This case highlights the difficulties in bringing a harassment claim against the media in relation to repeated publications.

It is peculiar that criminal liability must arise in order for there to be tortious liability.  Judges hearing civil claims may be hesitant to effectively brandish conduct as criminal.  Without the intervention of parliament it will continue to be difficult to successfully claim harassment against a media organisation unless this high bar is met.

Warby J was critical of the claimants’ pleadings  and did not consider many of the submissions put forward by the claimants’ counsel as they went beyond the pleaded case.  However, it is difficult to see that rectification of the pleadings to align with the submissions would have made a substantial difference in this matter.  For example, the only ‘conduct’ that was relied on by the claimants was publication of the articles themselves.  No other conduct, such as approaches by journalists, was relied on.  It is, however, still difficult to see how a journalist acting in pursuit of a legitimate story could assist much in mounting a claim for harassment unless there was something highly inappropriate about their conduct in doing so.

The claimants’ case in relation to the readers' comments failed, in part, because the pleaded case required that the defendants had actual knowledge of the comments.  It is possible this could be rectified in other cases by a different pleading more aligned to the submissions of the complainant, that the defendant’s ‘ought to have known’ that abusive and racist comments would have been published on articles such as these.  However, the question would then remain whether that could be said to be conduct which was ‘targeted’ at the claimants – which seems unlikely to be found given the comments are the acts of third parties and not the defendant media organisation.

Although this case does not shut the door on claims for harassment against the media entirely, it does show that only exceptional cases will have a chance of succeeding and claimants should be careful before issuing proceedings.

If you have been harassed by the press, contact us to arrange a consultation with one of our specialist media harassment solicitors.