The Court of Appeal has granted Carina Trimingham permission to appeal against the High Court’s judgment in her harassment and privacy claim against Associated Newspapers, publisher of the Daily Mail and Mail on Sunday.  In granting permission to appeal, Lord Justice Laws emphasised that there were “significant issues” as to the Judge’s treatment of the harassment claim.  He also noted that this was the first trial in England and Wales of a civil claim for harassment against a newspaper. He granted permission on all grounds, including Ms Trimingham’s privacy claim and claims under the Copyright, Designs and Patents Act 1988.

The appeal will focus on when newspapers may be liable for harassment under the Protection of Harassment Act 1998, particularly in the context of repeated pejorative and/or irrelevant references to characteristics that are usually provided with special protection in other areas of law, such as sexuality, race, religion etc.

The High Court Claim

Shortly after her relationship with Chris Huhne MP was revealed in June 2012, Carina Trimingham sued the publisher of the Daily Mail and Mail on Sunday for, amongst other things, invasion of her privacy. She complained about the publication of details of her private civil partnership ceremony, of her private conversations with friends, and of details of her sexual life.

Ms Trimingham was particularly upset by two articles, published early in the coverage of the story: “Chris Huhne’s bisexual lover: Life and very different loves of the PR girl in Doc Martens” (21 June 2010) and “First picture of Chris Huhne’s lover and the lesbian civil partner she has left broken hearted” (22 June 2010). These included claims that Carina faced the “formidable task of transforming herself into a cabinet minister’s consort“, and that with her “boyish cropped, spiky haircut and love of Dr Marten boots and jeans, could be forgiven for feeling rather out of place“. It claimed that she “does not fit the traditional feminine mould of ‘political wife’“. Further, on 24 June 2010, the Daily Mail published a comment piece by Richard Littlejohn, describing Trimingham as a “comedy lesbian from central casting” and “Millie Tant, straight from the pages of Viz magazine“.

Ms Trimingham complained that these early articles set the tone of Associated’s coverage, and that it continued to refer to her where she was not relevant to the story, often in highly pejorative terms. She argued that the Defendant used crude stereotypes about her sexuality and insults about her looks to mock her. When the claim first went to trial in October 2011, this element of her complaint was pleaded as an aggravated damages claim. However, after opening submissions, Ms Trimingham was given permission to amend her claim, to argue that Associated’s continued publications constituted a course of conduct which amounted to harassment.

At the reconvened trial in April 2012, Ms Trimingham set out her harassment claim. She illustrated, by reference to more than 50 articles in which she was mentioned, how the reports focused on her sexuality and her looks in a way which she believed had the effect of characterising her sexuality in a negative way. This included stereotypical references to her sexuality, often by reference to her physical appearance, her hair style, or the clothes she did or did not wear. She was referred to in various articles as….crop-haired”, “sturdy”, “spiky haired“, “Doc Marten-wearing“, “stern”, “callous and calculating”, a “lesbian-turned-bisexual”, a “bisexual activistetc etc. Despite her complains that the newspapers had reduced her to a simplistic sexual stereotype, the Daily Mail and the Mail on Sunday continued to publish articles along a similar vein, typecasting her as “bisexual“, “rather masculine” and having “boyish looks“.

She also claimed that the repeated reference to her sexuality, where that characteristic was irrelevant, was a form of mocking that became harassment. In doing so she referred to the PCC Editor’s Code which prohibits such references unless ‘genuinely relevant’ to the story.

In his Judgment, ([2012] EWHC 1296 (QB)) Mr Justice Tugendhat accepted Ms Trimingham’s assertion that that repeated mocking of a person by a national newspaper by reference to their sexual orientation would almost inevitably be so oppressive as to amount to harassment. However, he found that because the words “bisexual” and “lesbian” are factual words, which are “not normally understood to be pejorative by a reasonable person“. He did not accept that the references to “spiky hair“, “DM boots” and similar were anything more than factual references to Carina’s “appearance“. Neither did he accept that the distress Carina suffered as a result of the publication of references to her sexuality and her looks was any different than the distress caused by the general reporting of her affair with Mr Huhne MP.

Mr Justice Tugendhat was also critical of Ms Trimingham’s evidence. In granting permission to appeal, the Court of Appeal acknowledged the force of his views about her as a witness. Lord Justice Laws noted that Mr Justice Tugendhat’s conclusions about her may well be right, but said that the significant issues involved warranted appellate consideration.

The Appeal

The issue at the heart of Ms Trimingham’s harassment claim was whether the Defendant’s references to her sexuality were pejorative and/or irrelevant. If they were, she argued, a reasonable person would have anticipated that they would have caused her distress, and Associated’s conduct would not have been reasonable.

In her application to the Court of Appeal, Ms Trimingham argued that Mr Justice Tugendhat misapplied the test for determining whether references were pejorative, focusing almost entirely on whether the words “bisexual” and “lesbian” were of themselves pejorative, without sufficiently considering the context in which they were used. She argues that the High Court’s separation of comments about sexuality and comments about appearance overlooked a core feature of her complaint, i.e. that the negative references to her appearance – by continually casting her as masculine and unattractive, and having the look of a laughable lesbian cartoon character – were part of pejorative stereotyping about her sexuality. By way of analogy, if a newspaper had published repeated references to a person’s ethnicity (e.g. that they were African-Caribbean or Jewish) and also made insulting and offensive references to their appearance (e.g. that they ‘looked like a monkey’ or ‘had a large nose’) it would be artificial to separate the references to their ethnicity from the comments about their appearance when considering how a reasonable reader may have understood them.

Ms Trimingham also appealed on the basis that Mr Justice Tugendhat erred in assessing wither Associated’s references to her sexuality were irrelevant, applying the wrong test and allowing inappropriate deference to editorial style. References to a person’s sexuality – as well as their race, ethnicity, and other personal characteristics – are recognised as meriting special protection, and require careful scrutiny, beyond the broad, general approach that largely defers to editorial discretion.

Pejorative and irrelevant references to sexuality are expressly precluded by Clause 12 of the PCC Editors Code. In her appeal, Ms Trimingham asserts that Mr Justice Tugendhat erred by failing to take the Code into account. At trial, the Judge rejected her submissions that the Court was required to have regard to it and/or that it was an indicator of best practice. The Judge considered that at most the Code provided some evidence of what a reasonable journalist ought to know.

The Court of Appeal will also have to consider whether Mr Justice Tugendhat erred in his determination on causation; as he considered himself unable to conclude that the references to the Appellant’s sexuality caused her any distress and damage.

Mr Justice Tugendhat held that Ms Trimingham was not a private individual, as a result of her PR work for leading politicians and her sexual relationship with Mr Huhne. On Appeal, Ms Trimingham argues that was both an error of law and fact. Furthermore, her status as a private individual  – while relevant to her privacy claim – had no meaningful importance to her harassment claim. A public figure might may be equally upset by comments about their sexuality – or indeed their race, or ethnicity – as a private figure might be.

The Court of Appeal will also consider whether the High Court judge was right to consider it relevant that Associated considered Ms Trimingham a “tough woman” in her past career as a journalist. Ms Trimingham will argue that a person who handles their professional life in a robust, resilient manner is not necessarily less likely to be caused distress by pejorative or irrelevant references to their race, religion or sexuality, than another person in the same profession who takes a more gentle and relaxed approach.

In addition to Ms Trimingham’s claim under the Protection from Harassment Act, permission to appeal was granted in relation to her claims for misuse of private information and for breach of statutory duty, contrary to section 85 of the Copyright Designs and Patents Act.

In relation to the privacy claim, Ms Trimingham argues, amongst other things, that the judge erred in deciding that she was not a private individual, thereby reducing her reasonable expectation of privacy. Mr Justice Tugendhat held that Ms Trimingham was not a private individual, because of her professional role as a press advisor to a senior politician, and due to her personal relationship with Mr Huhne MP. In the appeal, Ms Trimingham disputes both points, arguing that she had no public profile other than in the ordinary context of her work with other persons in the media, and that her position in the election campaigns of politicians was not a matter of public comment or interest prior to the story about her relationship with Mr Huhne. She argues that his public profile should not have reduced her status as a private individual in relation to her sexual past, which was unrelated to her current relationship with him.

The claim under the Copyright Designs and Patents Act relates to photographs taken by a professional photographer at Ms Trimingham’s civil partnership ceremony in 2007. Ms Trimingham claims that the photographs were “commissioned” under the Act, as the photographer, a friend of hers, had acted as the official photographer for the date, agreeing as a wedding present not to charge her for his work. The photographer gave evidence that he retained copyright in the works, giving Ms Trimingham and her former partner a CD of the best images for their own non-commercial use. The term “commissioned” is not defined in the Copyright Designs and Patents Act. Mr Justice Tugendhat concluded that the photographs had not been “commissioned” because there was no obligation on the part of the photographer to complete the work, and no obligation on the commissioning party to pay for it in money or money’s worth. On Appeal, Ms Trimingham argues that the judge erred in this conclusion, and that he should have found that in the context of the Copyright Designs and Patents Act “commissioned” merely means that someone had ordered, asked or given permission for a photograph to be taken for domestic or private purposes. The additional requirement that there be a contractual relationship, she argues, represents a hurdle that is not to be found in any ordinary reading of the Act.

The Appeal will be heard in a “window” of 21 November 2012 to 21 March 2013.