chessington_world_of_adventures_kobra2The case of Merlin Entertainments LPC v Peter Cave ([2014] EWHC 3036 (QB)) explores the extent to which a campaign of criticism, conducted by internet and email, can merit restraint by the civil courts. As the judge says, whatever the aims of the campaign in question, its supporters may, in the course of their activities, annoy, irritate, and upset companies and individuals.  But should the courts interfere, before the question whether the campaign is justified has been decided?  And to what extent is such a campaign a criminal offence?

This particular dispute concerned a series of communications by the defendant to the general public about the inadequacy of safety measures and other shortcomings of the claimants’ amusement parks. The claimants contended that Dr Cave’s communications with the public and with their employees were defamatory, and in breach of confidence, and that they were thereby entitled to stop him, before any trial, by relying on the statutory tort of harassment. They therefore applied for an interim injunction restraining the defendant from setting up websites and sending mass emails regarding the issue of safety in theme parks. The question before the judge was whether they should wait until they had established defamation and/or breach of confidence, before the court granted a remedy.

Background facts and law

After an accident at one of the first claimant’s parks where a child was injured, Dr Cave was retained to provide confidential expert advice.  There was a dispute regarding payment for his report which resulted in the defendant issuing proceedings. He also unsuccessfully applied for an injunction to stop the park re-opening after its winter break. His earlier claim was struck out, his company was wound up and he was made bankrupt. The defendant commenced his campaign by sending out a series of emails criticising the first claimant and its employees. He also engaged in mail drops to local residents and businesses. Dr Cave contended that his safety concerns were justified, and argued that he was exercising his right to freedom of expression under Article 10 of the ECHR. He also argued that the case raised an important issue about the lawfulness of campaigns which, if their content was correct, were in the public interest.

The Court’s decision

Laing J rejected the claimants’ application to block the defendants’  communications.  She concluded that Dr Cave’s course of conduct did not amount to harassment and the claimants had not satisfied the court that their substantive claim was more likely than not to succeed at trial. However much distress is caused by conduct which is potentially defamatory, that conduct should not be restrained by interim injunction, if the defendant would seek to justify it at trial. That would infringe the rule in Bonnard v Perryman [1891] 2 Ch 269.

The claim pleaded in this case relied on harassment contrary to section 1(1) of the 1997 Protection from Harassment Act, which provides that a person must not “pursue a course of conduct (a) which amounts to harassment of another and (b) which he knows or ought to know amounts to harassment of another”.  “Harassment” is an ordinary English word, but it can take many different forms, and most people would regard stalking as the paradigm case of harassment. But under the PHA, the creation of a fear of violence is not a necessary element of harassment. Laing J cites Lord Sumption’s definition of harassment in 2013:

“Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78 , para 30 (Lord Phillips of Worth Matravers MR). One of the more egregious forms of harassment is the stalking of women. But the Act is capable of applying to any form of harassment. Among the examples to come before the courts in recent years have been repeated offensive publications in a newspaper (as in Thomas); victimisation in the workplace (Majrowski v Guy’s and St Thomas’s NHS Trust[2007] 1 AC 224 ); and campaigns against the employees of an arms manufacturer by political protesters:EDO Technology Ltd v Campaign to Smash EDO[2005] EWHC 2490 (QB).” (Hayes v Willoughby [2013] UKSC 17) – read David Hart’s post on this case for a detailed exposition of Lord Sumption’s analysis of the ingredients of harassment.

The challenge therefore is to strike the correct balance between the offence of harassment and freedom of expression: the PHA makes no express provision about either Article 10 or the law of defamation. So the courts must always ensure that any relief sought, while restraining objectionable conduct, goes no further than is absolutely necessary in interfering with freedom of expression.

There is no express indication in the PHA that Parliament intended the provisions of the PHA to abrogate the rights conferred by article 10, or to change the law of defamation, which is, by necessary implication, involved in any consideration of the scope of the legitimate restrictions which may be placed by a contracting state on the rights conferred by article 10. Nothing in the PHA indicates that Parliament intended to encroach on the rule in Bonnard v Perryman. This common law rule operates so as to safeguard freedom of speech and I consider that its relevance to the issues in this case is supported, if not reinforced, by section 3 of the HRA.

The judge outlined a number of features of the defendant’s conduct, in relation to the law on harassment:

  • The mere fact of sending mass emails is not harassment. For the tort (or crime) of harassment to be committed it is necessary for there to be some extra element, either in the content of the emails, or in their frequency.
  • The mere fact that Dr Cave had been warned that his communications would be regarded as harassment could not, as a matter of law, convert innocuous conduct into harassment.
  • The absence of significant evidence of a reaction of alarm or distress was “highly relevant” to an assessment of whether the conduct amounted to harassment.
  • There is a public interest in ensuring that theme parks are safe; whilst their officers should be protected from real harassment, this did not mean they were immune from criticism, even if that was misguided and intemperate.

The judge therefore did not consider that the series of mass emails to employees of the corporate claimants was a course of conduct which amounted to harassment of those employees. Most significantly, there was no basis for a blanket prohibition on any communication with or about the companies’ officers, employees or agents. An order in those terms would interfere with the defendant’s Art.10 rights and those of the employees.

Section 12(3) of the Human Rights Act 1998  applied, even if the conduct complained of had the extra elements necessary to constitute harassment independently. The general approach had to be that courts should be “exceedingly slow” to grant an injunction to restrain publication where the applicant had not satisfied the court that he would probably, or “more likely than not”, succeed at trial  (Cream Holdings Ltd v Banerjee [2004] UKHL 44).

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks