In March 2013 Carina Trimingham’s appeal in her claim against Associated Newspapers for harassment, misuse of private information and breach of copyright will be heard by the Court of Appeal. The High Court case and permission to appeal has already been covered by this blog, however this case also raises interesting points in light of the Leveson Report.
Following the revelation of her relationship with Chris Huhne in 2010, Ms Trimingham became the focus of intense media attention. As she explained in an interview with The Independent on Sunday, the crux of her complaint is that the nature of this attention from the Daily Mail and the Mail on Sunday was such that it amounted to harassment contrary to the Protection from Harassment Act 1998. Ms Trimingham’s claim arises from a series of articles published in those newspapers over the course of 14 months. She claims that the articles amounted to a sustained campaign to vilify her, that went far beyond simply exposing the fact and detail of her affair with Huhne, and that they made repeated and mocking references to her sexual orientation and ridiculed her appearance by invoking crude and pejorative stereotypes based on her sexuality. Many, if not all, of the articles attracted readers’ comments that also contained highly personal attacks on Ms Trimingham, often focusing on her looks and/or sexuality.
This case is the first time that a civil claim for harassment has been brought against a newspaper, but what is particularly interesting is the spotlight it shines on the Leveson proposals. Specifically as the case raises issues that are less about the mechanism of regulation, and more about what the standards of behaviour that should be imposed upon the press are. In his report, Leveson found that, “there has been a recklessness in prioritising sensational stories, almost irrespective of the harm that the stories may cause and the rights of those who would be affected (perhaps in a way that can never be remedied)”. Given this, it is perhaps a little surprising that this aspect of Leveson has received considerably less attention than the issue of enforcement. There has been a fevered debate (replete with misinformation and scare-mongering) of the report’s proposals, but it seems that amongst the furore the genesis of the Leveson Inquiry has been forgotten.
Some would argue, that is entirely the point. Indeed the press seem to have done a pretty good job of deflecting attention from the real purpose of the Leveson report by framing the debate as an issue of free speech, concentrating on the ability of a free press to hold the powerful to account. Yet as a few have pointed out, Leveson’s proposals do not seek to limit the ability of the press to hold the powerful to account, but instead aim to curb the more unsavoury aspects of the press; see, for example, Peter Wilby’s comments which included the following:
“What Leveson proposes, however, has no bearing on newspapers’ capacity to call power to account. His remedies are designed to limit the extent to which the press can harass, mock, insult, bully, threaten, intrude upon, lie about and generally ruin the lives of the weak and powerless, including not only the McCanns, the Dowlers, Christopher Jefferies, victims of terrorism, families of dead soldiers and so on, but also the relatives, employees and friends of those loosely described as celebrities.”
Thus it is not just about protecting celebrities from harassment and gossip mongering, it also means providing a remedy for ordinary people who, often by sheer happenstance, find themselves subjected to intrusive, bullying and often life-ruining attention from some sections of the press. After all, it was exactly that type of behaviour that triggered the establishment of the Leveson inquiry in the first place.
Ms Trimingham’s case then, provides a lens through which to revisit those aspects of the Leveson Report which relate to this type of reporting by the press. The report highlighted the often highly insensitive and prejudiced coverage of sensitive issues such as gender and sexuality, citing multiple occasions on which newspapers had ‘outed‘ transsexuals without permission from the individuals concerned. On one occasion The Sun offered a reward to readers if they could reveal the identity of the UK’s first transgender male to give birth. The paper then published the man’s identity, which led other newspapers to publish articles describing the thought of a man giving birth as “freakish” and “revolting”. In a particularly troubling episode highlighted by the report, the Daily Mail repeatedly published the details (complete with photographs) of a five year old child who had been diagnosed with Gender Identity Disorder, using the child as “an example to debunk the politically correct rise of an “industry” which encourages trans-sexualism”. The report rightly noted that, “the impact of the reporting as a whole may well have been tremendously damaging” to a vulnerable child.
Instances such as these lead Leveson to remark;
“On the basis of the evidence seen by the Inquiry, it is clear that there is a marked tendency in a section of the press to fail to treat members of the transgender and intersex communities with sufficient dignity and respect; and in instances where individuals are identified either expressly or by necessary implication perpetrate breaches of clause 12 of the Code.”
Is the treatment of Ms Trimingham yet another example, to add to the many that transpired during the course of Leveson, of the press simply ignoring the PCC Editors Code? The Code specifically prohibits prejudicial or pejorative references to an individual’s sexual orientation, or indeed any reference at all unless it is genuinely relevant to the story. This apparent lack of dignity and respect extends to coverage of other groups within society too, with the report noting;
“Overall, the evidence in relation to the representation of women and minorities suggests that there has been a significant tendency within the press which leads to the publication of prejudicial or pejorative references to race, religion, gender, sexual orientation or physical or mental illness or disability … A new regulator will need to address these issues as a matter of priority, the first steps being to amend practice and the Code to permit third party complaints.”
Former Cabinet minister Peter Lilley insists that harassment is the price you pay for a free press. Surely there’s a difference between a certain level of press intrusion in the name of the public interest, and sustained campaign of harassment motivated by the rabid pursuit of salacious gossip; a free press and protection against harassment are not mutually exclusive. Given that Chris Huhne had specifically campaigned on the platform of his happy marriage, I don’t think many would have objected to the press revealing details of an affair that exposed his hypocrisy. The issue that the Court of Appeal has to grapple with in the Trimingham appeal is how far that allows the press to go in repeatedly mocking others caught up in the same story, and whether there are additional limits depending on the nature of that mocking.
Eloise Le Santo is a trainee barrister at Matrix Chambers