Harassment usually involves two individuals, the classic example being stalking but claims can, potentially cover a much wider range of activities. In Trimingham v Associated Newspapers Limited ( EWHC 1296 (QB)), the claimant Carina Trimingham claimed that she had been harassed by a large number of articles in the Daily Mail in print and online, and by comments left by readers on the paper’s website.
The judgment handed down by Tugendhat J on 24 May 2012 examines in detail the approach to be taken to a claim in harassment against a media defendant, as well as considering the unique situation in which Ms Trimingham found herself.
Ms Trimingham worked as campaigns director for the Electoral Reform Society and sometime aide/press officer to Mr Huhne. Mr Huhne was MP for Eastleigh in Hampshire, had been re-elected in the 2010 General Election, and became a Minister in the Coalition Government. Part of his election publicity material was a leaflet in which he referred to the importance of his family. He was married and Ms Trimingham was in a civil partnership when they embarked on an affair in 2008, and their relationship became public on 20 June 2010 when it was revealed by The People and The Mail on Sunday.
The Defendant undertook extensive coverage of Mr Huhne and Ms Trimingham’s relationship. On the day the story broke, it ran a news story, and on the following day a double page feature entitled “The Life and Very Different Loves of a PR Girl in Doc Martens”. It ran eight articles in total between 20 June and 1 July 2010, and the amended Particulars of Claim eventually included 57 articles. The majority of the coverage referred to her as “bisexual”, some included photographs of her at the celebration of her civil partnership, and some made disparaging comments about her appearance.
A number of the articles also attracted reader comments, 152 of which were mentioned in the claim under the heading of harassment. Ms Trimingham stated that the comments complained of taunted and lampooned her “for being ugly and attack her in regard to her sexuality”.
Ms Trimingham claimed aggravated damages and an injunction, the form of which was that the Defendant would not harass her, and would not refer to her sexual orientation unless it was relevant beyond the fact of her relationship with Mr Huhne and her separation from her partner.
Ms Trimingham’s claim was made under three separate statutes. It was initially for interference with her privacy right under the Copyright Designs and Patent Act 1988 s.85 (“CPDA”), in respect of two photographs, and for misuse of private information under the HRA and ECHR Article 8. To these was added by amendment at an initial hearing in October 2011 a claim under the Protection From Harassment Act 1997 (“PHA”). She did not make any claim in libel, and the Judge referred repeatedly to the fact that the articles complained of contained a great deal of defamatory but true information about Ms Trimingham and her affair with Mr Huhne.
The bulk of the judgment considers the claim under the PHA, as the course of conduct which Ms Trimingham alleged amounted to harassment included all of the publications complained of for misuse of private information or breaches of the CPDA. The PHA says a person must not pursue a course of conduct which amounts to, or which he knows or ought to know amounts to, harassment of the other. A person ought to have such knowledge
“if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.”
There is no illegality where the person pursuing the course of conduct shows that it is “reasonable” in the circumstances (s1(3)(c)).
The Judge outlined the interaction between the PHA and Article 10 rights. He referred to Thomas v News Group Newspapers Ltd  EWCA Civ 1233, in which the Court of Appeal held that a publication in a newspaper was capable of constituting harassment. The claim included a reference to readers’ letters which were held to play a part in the paper’s course of conduct. Tugendhat J understood Lord Phillips’s explanation in that case of what type of conduct could amount to harassment under the Act as meaning that the court
“must hold that a course of conduct in the form of journalistic speech is reasonable under PHA s.1(3)(c) unless, in the particular circumstances of the case, the course of conduct is so unreasonable that it is necessary (in the sense of a pressing social need) and proportionate to prohibit or sanction the speech in pursuit of one of the aims listed in Art 10(2), including, in particular, for the protection of the rights of others under Art 8”
The approach which the court must take to a claimant’s and a defendant’s rights is the one set out in Re S (A child)(Identification: Restriction on Publication)  UKHL 47 (the “ultimate balancing test”).
The Judge considered the English and European law surrounding freedom of expression, referring to the principle articulated in Sedley LJ’s frequently cited statement in Redmond-Bate v DPP (1999) 7 BHRC 375 that “freedom to speak only inoffensively is not worth having”.
He also examined the threshold of seriousness which a course of conduct must cross in order to become harassment within the PHA, referring to Majrowski v Guy’s and St Thomas’s NHS Trust  UKHL 34, where Lord Nicholls stated that
“To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.”
In Conn v City of Sunderland  EWCA Civ 1492 Buxton LJ reiterated Lord Nicholls’s statement.
Where what is at stake, as under the PHA, is the knowledge of a writer that his conduct is causing distress, the court should consider the characteristics of that person that are known to the journalist. The Defendant cited Conn in this regard, and also the words of Kennedy LJ in Banks v Ablex Ltd  EWCA Civ 173, where the judge at first instance had commented on the claimant’s strong character and ability to “give as good as she got.”
At this point, the Judge emphasised the significance of the fact that the claim was not made in defamation in respect of the articles’ central theme: that she had been involved in the break-up of Mr Huhne’s marriage. In King v Sunday Newspapers Ltd  NIQB 107 articles including private information about the claimant did not amount to harassment because the truth of their central theme was not in issue.
The status of the claimant as a private individual or public figure is also relevant when considering Article 10 rights. On this point the Defendant cited Porubova v. Russia  ECHR 1477 and Saaristo v Finland 184/06  ECHR 1497. Saaristo was a factually similar case, in that it featured a political communications manager who, although neither a civil servant nor a politicial “was not a completely private person either” and was someone who
“must have understood that her own person would also attract public interest and that the scope of her protected private life would become somewhat more limited.”
The Judge summarised the main points featured in the Defendant’s defence and then summarised the issues which he had to decide as follows:
“(1) was the distress that Ms Trimingham suffered the result of the course of conduct, in the form of speech, that she complains of? (2) if so, ought the Defendant to have known that that course of conduct amounted to harassment? (3) if so, has the Defendant shown that the pursuit of that course of conduct was reasonable (in the sense defined in Thomas)?”
The first two questions raised subsidiary issues as to whether or not Ms Trimingham was a purely private figure, and whether she was a person with a personality known to the Defendant so that it ought not to have known that the course of conduct was harassment.
In Tugendhat J’s assessment of her evidence Ms Trimingham had made little attempt to distinguish between the causes of her distress. He found that a reasonable person in the Defendant’s position would consider that the distress a reasonable person in Ms Trimingham’s position would suffer would include distress at the defamatory but true information about her role in the breakup of Mr Huhne’s marriage. The Judge found her not to be a good or reliable witness in a number of respects, including in her assertion of the effect of the publication of the photo of her civil partnership, and of the fact that information included about her in stories on Mr Huhne was irrelevant.
The Judge also noted her lack of candour in talking down the importance of Mr Huhne’s family-centred election publicity, which showed a lack of objectivity in her complaints about the coverage of the scandal. He felt that she failed to recognise the extent to which her own behaviour had given rise to the unfavourable coverage, and that she had failed to fully disclose the extent of her own dealings with the press (including the Defendant) in selling stories to journalists.
Several of the Defendant’s journalists gave evidence on its behalf, including senior Mail journalist Andrew Pierce, who is gay and has known Ms Trimingham for many years through their involvement in politics, columnist Amanda Platell, journalists Kirsty Walker and Jason Groves and the Mail’s Deputy Editor Jon Steafel. The Defendant also called Ms Maggie Morgan, who had obtained the photo of the civil partnership from Ms Trimingham’s partner’s sister. Where there was conflict between the Defendant’s witnesses, particularly Mr Pierce, and Ms Trimingham, the Judge rejected Ms Trimingham’s evidence.
The Judge did not accept the first premise of Ms Trimingham’s case, that she is a private individual. This was first because of her job a press officer for a leading politician, and second because of her secret relationship with Mr Huhne which she knew would likely lead to a scandal. He referred to the Court’s finding in Saaristo that the scope of the claimant’s private life was limited by her activities. Neither the individual journalists nor the Defendant knew or ought to have known that the stories they were writing about Ms Trimingham amounted to harassment.
In relation to causation, Ms Trimingham’s claim was hampered by the fact that it was difficult to separate the specific words complained of from the defamatory words which were not part of the complaint, and from the conduct of persons other than the Defendant. Her distress was caused principally by the true but defamatory allegations about her conduct.
The repeated reference to Ms Trimingham as “bisexual” or “lesbian” was not harassment because the words are factual, not pejorative. The fact that an unreasonable reader might attribute her conduct to her sexuality did not mean that the Defendant should be sanctioned. There was a close connection here between what the Defendant ought to know amounts to harassment and whether its course of conduct was reasonable (PHA s1(1) and (2) and s1(3)(c)), and the references to Ms Trimingham’s sexuality were not unreasonable, nor was it unreasonable to refer to it “on as many occasions as the substance of the story is repeated”.
The Judge acknowledged that excessive repetition “so as… to amount to taunting” might make a course of conduct amount to harassment. Ms Trimingham relied on the repetition of details of her sexuality and comments on her appearance in asserting that the Defendant crossed the line into harassment. However, the Judge found that Ms Trimingham was mentioned only in stories in which the main character was Mr Huhne. Her role was always secondary, and, although the Judge conceded that it was not impossible that a secondary character might “succeed in a claim for harassment for speech directed to the primary character” such a claim would have to be considered on its own facts. The fact that the repetitions were made because of Mr Huhne’s own appearances in the news meant that they were not harassment.
Balancing all the factors mentioned, the Judge did not find it necessary or proportionate to make an injunction, or find a breach of the PHA against the Defendant. The claim in respect of the readers’ comments was rejected for the same reasons: they were “not so unreasonable that it is necessary and proportionate to prohibit their publication”. Neither complaints about the way in which information was gathered about her, nor the inclusion of information about her upbringing were a basis for complaint.
The two further claims also failed. The claim for misuse of private information was based on a series of categories of information which Ms Trimingham alleged the Defendant had misused, including details of her sexuality, her appearance, her relationship history, her sexual relationship with Mr Huhne, and photographs of her civil partnership. The Judge did not find that in the circumstances Ms Trimingham had a reasonable expectation of privacy in respect of any of these. The claim under the CPDA also failed as the Judge found that Ms Trimingham had not commissioned the photos within the meaning of the Act, which in any event did not need to be interpreted to give effect to Article 8 rights.
Newspapers undoubtedly do fixate on details of people’s lives that will excite the disapproval of their readers. Inducing a mild sense of outrage over breakfast is one of the ways they keep their circulation figures up. The nature of the details chosen – the pay conditions of the public servant, or the sexuality of the political aide – may seem inappropriate or distasteful to some. A close analysis of them, in news reporting or elsewhere, reveals much about the world-view of a particular publication.
However, Tugendhat J was clear that the sanctioning of such choices where they are made in the course of legitimate journalism is not the job of judges. He provides an extensive explanation of the importance of pluralism and toleration in relation to freedom of expression. In a coda to his extremely long and detailed judgment, Tugendhat J notes the success of the Defendant’s business, as well as the fact that many may be critical of what it publishes, and states that the expression of a view on this is not for the court. All it can do
“is to find whether or not it is necessary and proportionate to sanction or prohibit a particular publication on one of the grounds specified in Art 10(2).”
The decision emphasises the importance of Article 10 rights in considering any claim for harassment by a newspaper and, while it does make clear that such a claim may be possible, the path for the claimant appears littered with obstacles. The Wednesbury style formulation of the test for harassment set out by the Judge (“so unreasonable that it is necessary…”) conveys the sense that, while they can get involved, the courts will be reluctant to do so.
Beyond this, the unusual and complicated circumstances of the case make it hard to extrapolate points of principle. The judge was strongly of the view that Ms Trimingham was not a purely private individual, and her own political activities, as well as her involvement with a prominent politician, had a decisive impact on her rights. She was also the subject of a distressing but entirely true news story, and it proved impossible to separate references to her sexuality from the valid reporting of her role in that story, or to find the Defendant liable for its choices as to how it described her. She had also herself sold stories to the Defendant in the past and the Judge appears to have accepted its assertion that this made her “a robust and tough operator”, a factor which goes to the actual or imputed knowledge necessary for a course of conduct to amount to harassment.
This complexity is reflected in coverage of the decision in the media. Ms Trimingham herself denounced the judgment as confused, and a possible “blueprint for bullies and bigots”. In a similar vein, Nichi Hodgson in the New Statesman condemned it as “a victory for a snide tabloid manipulation of subtext”. Writing in The Observer, Peter Preston saw the treatment of Ms Trimingham as part of a long-standing British tradition of conducting public business via the medium of vulgar abuse. In the Australian “Gazette of Law and Journalism”, News International lawyer Stephen Collins (by subscription only) hailed it as one of a series of recent decisions which bolster the right to freedom of expression of the media. Writing in The Guardian, Siobhain Butterworth found the decision infused by value judgments, and focused on the many questions it raised; particularly relevant to the press is the final one she highlights:
“what sort of “exceptional circumstances” need to exist before a media organisation’s conduct is found to be so oppressive and unreasonable that it amounts to harassment?”
Perhaps the answer is that it is very unlikely that such circumstances will be held to exist but that the prospect of such a finding remains something which may itself moderate the future behaviour of the press.
Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.