Not so black and white: privacy and harassment by publication

22 June 2012

Two recent cases, with contrasting results, have attracted press attention on the subject of Privacy and ‘Harassment by Publication’.

In the first, Carina Trimingham, the partner of former energy secretary Chris Huhne lost her claim for an injunction and damages against the Daily Mail and the Mail on Sunday following publication by the newspapers of over 65 "highly unpleasant and hurtful articles" concerning her appearance and sexuality. These included reference to the "life and very different loves of the PR girl in Doc Martens" and description of Ms Trimingham as a "comedy lesbian from central casting".

In his High Court Judgement, Mr Justice Tugendhat held that the circumstances of the case were such that Ms Trimingham’s reasonable expectation of privacy had become limited mainly due to her involvement with Mr Huhne, both professionally and personally. He considered that the newspapers' reference to Ms Trimingham’s sexuality only happened " (a) when writing about matters of public interest, mainly developments in Mr Huhne's personal life which were relevant to his public life and (b) when Ms Trimingham and her conduct (and other information about her) were within the range of what an editor could in good faith regard as relevant to the story."
Whilst acknowledging the distress that Ms Trimingham had undoubtedly suffered, he stated that "To the extent that the words complained include insults and other offensive matter, insulting and offensive speech is protected by the right of freedom of expression." He warned however that his ruling was not a license for the newspapers to repeat the offending words indefinitely or in any circumstances.

In contrast, in the latest in an ongoing battle between Ken Bates, the Leeds United chairman and Mr Melvyn Levy a former director of Leeds United, Mr Bates  was ordered to pay £10,000 to Mr Levy over announcements made on the club radio station allegedly likening Mr Levi to a criminal on the run and comments made by Mr Bates in his match day programme notes amounting to speculation over the state of Mr Levi’s marriage.

Mr Levi and his wife made 10 allegations of harassment, 7 of which were articles in the Leeds United match day programme in addition to the broadcast on the club's radio station.

Judge Gosnell in the Leeds County Court held that Mr Bates’ motive in making radio announcements about Mr Levy was to harass him. As concerns the match day programme notes, the Judge said that the question was whether they were "a reflection of(Mr Bates') genuinely held views of interest to fans of Leeds United? Or are they…. a vehicle for (Mr Bates) to pursue his personal animosity against (Mr Levi) by publishing partial, inaccurate and damaging comments … under the guise of freedom of speech".

The Judge found it difficult to accept that genuine Leeds United fans had any interest in the dispute between Mr Bates and Mr Levi and considered that the motivation to report matters which were derogatory about Mr Levi were founded on a personal grudge arising from original business dealings between the parties in 2004. "I find this is not a genuine attempt to report matters of interest to fans of the club".

He held that the radio broadcasts and one article constituted acts of harassment which were targeted at Mr Levi and were calculated in an objective sense to cause alarm or distress. He considered these acts to be oppressive and unacceptable when viewed objectively.

Interestingly, as concerns Mrs Levi, the Judge found only one incident which could be said to be harassment targeted at her. Mrs Levi’s claim therefore failed because "The statute makes it clear that a course of conduct must be conduct on at least two occasions". Harassment of Mr Levi could not inevitably lead to harassment of Mrs Levi because of Mr and Mrs Levi’s close emotional connection and relationship. "If that were the case every spouse of a victim of public harassment could also make a claim".

The Judge also granted an injunction restraining Mr Bates from commenting on Mr and Mrs Levi’s private and personal life, for two years but Mr Bates was allowed to mention the ongoing commercial dispute between him and Mr Levi as well as other non-private matters.

The damages awarded to Mr Levi can be considered to be on the low end of the scale and Mr Bates was ordered to pay only 30%of Mr Levi’s legal costs.

These cases would seem to again illustrate how difficult it is to prove and succeed in claims for invasion of privacy and harassment by publication.

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