What do Russell Brand, the owner of Chessington World of Adventures and an anonymised partner of a law firm and a company director all have in common? They have all claimed to have been harassed and have sought anti-harassment injunctions over the summer.
Three were successful and one failed – but all raised the same interesting issue relating to freedom of expression, namely to what extent can the law be used to stop individuals making repeated defamatory statements which they claim are true but which constitute harassing conduct?
Brand v Berki
The well-known case of Bonnard v Perryman  2 CH 269 means that injunctions are not granted in libel cases where the defendant says they will justify the allegation at trial unless it is clear that the defence will not succeed. But what if the defendant continues to repeat and broadcast the defamatory statement and knowing that it’s causing the claimant alarm and distress? Mrs Justice Laing said in Merlin Entertainments  EWHC 3036 , the real question then is “whether the conduct complained of has extra elements of oppression, persistence and unpleasantness” which “are distinct from the content of the statement” and it therefore crosses the line to constitute harassment.
In Russell Brand’s case, he and Jemima Goldsmith applied and were granted an injunction against a masseuse called Sylvie Berki after a surprise birthday present she bought for him didn’t go according to plan (see the judgment at  EWHC 2979).
The initial injunction was granted to them on an urgent basis with a full hearing following a week later. The detail of what happened isn’t known as some of the allegations made by Ms Berki concern extremely private and sensitive matters. What we do know is that there was a disagreement as to what took place at the meeting and that the massage never took place. Mr Brand says that was because he felt uneasy with Ms Berki and didn’t want to proceed; Ms Berki says she was the victim of wrongful and criminal conduct. The details of Ms Berk’s allegations are set out in a confidential schedule to the Order that was initially granted by Mr Justice Lewis.
At the return day, Mrs Justice Carr held that they should remain in a confidential schedule and not be mentioned in court. To do so would result in publicity and that would be “a significant and unjustifiable interference with the Claimants’ Article 8 rights” . So although the hearing was held in public, the reporting restriction made at the first hearing under s.11 of the Contempt of Court Act preventing publication of the details in the confidential schedule was continued  and an order was made restricting access to the Court file .
The orders made were held to be “necessary and no more restrictive in their terms than was necessary to achieve the objective of protecting the Claimants’ Article 8 rights” . And the orders did not prevent the general detail of the case being widely reported (see, for example, the Guardian and The Independent).
This was a case where Ms Berki was making defamatory allegations about Mr Brand and Ms Goldsmith which she said were true. She approached journalists, an MP, UNICEF, the Prime Minister and others telling them the Claimants might have committed a number of very serious criminal offences. If this had been a claim for libel alone then it would not have been possible to obtain an injunction following the Bonnard v Perryman ruling (as this was not a case where it was clear that no defence could succeed). However, the Particulars of Claim confined the claim to one for harassment and the ultimate issue was not therefore whether the allegations were true but whether the conduct in making the allegations constituted harassment.
The judge found that :
- Ms Berki’s concerted campaign against Mr Brand and Ms Goldsmith went “well beyond annoyance” and “can fairly be described as oppressive and unacceptable”;
- There was clear evidence Ms Berki’s conduct had caused the Mr Brand and Ms Goldsmith alarm and distress; and
- Ms Berki knew or ought to have known that her conduct amounted to harassment.
The judge considered that there were no possible defences to the harassment claim available to Ms Berki (who appeared in person). The communications on Twitter, to journalists and to UNICEF could not be said to have been made for the ‘prevention or detection of crime’; there was no known defence relating to having a mental illness (something Ms Berki had raised) and there was no reasonable objective justification for her actions. Mr Brand and Ms Goldsmith therefore were granted a continuation of the injunction until trial or further order: the fettering of Ms Berki’s free speech rights was found to be appropriate.
QRS v Beach
In QRS v Beach,  EWHC 3057 the Claimant, a partner and chairman of a law firm, brought the action on behalf of himself and in a representative capacity for others in the firm to prevent the Defendants from posting defamatory statements on websites which alleged corruption, failure to act in their client’s interests and untruthfulness. The Claimant relied upon the case of Law Society v Kordowski where it was found that the publications on a website had been made in the knowledge that they would inevitably (and did) come to the attention of those named on more than one occasion and on each occasion cause them distress and harm.
The Court agreed and, on the material before it, found there were no available defences. Accordingly, on the basis that Mrs Justice Slade determined the Claimants were more likely than not to succeed at trial, the injunction was granted.
On 16 September 2016, Mr Justice Stuart-Smith, granted the claimant a permanent injunction, no defence having been served ( EWHC 3319 (QB) [pdf]). In granting the permanent injunction in harassment the judge said
“I have given particular attention to the effect that the proposed order would have upon the defendants’ right to freedom of expression. However, that right is not unlimited and the defendants have chosen not to take their opportunity to assert it by serving any response to the claim or this application. The consequence of their decision is that there will be final judgment in the claimant and protected parties’ favour which establishes the unlawfulness of the harassment by both defendants. In those circumstances the claimant and protected parties are entitled to a permanent injunction to vindicate the right that they have proved against each defendant” 
Merlin Entertainments v Cave
The decision in Merlin Entertaiments LPC & others v Cave ( EWHC 3036 (QB)) went the other way and the injunction wasn’t granted by Mrs Justice Elizabeth Laing as it was found that the conduct of the defendant didn’t cross ‘the Majorwski line’ of being unacceptable and oppressive.
The claimants – four companies and one individual involved in the running amusement parks – had sought to prevent Mr Cave from sending mass emails and setting up websites in which he campaigned about the issue of safety in theme parks and criticised the claimants and some others. Mr Cave’s position was that his accusations were true and that he would justify them at trial. The Court held that nevertheless, despite the rule in Bonnard v Perryman, there may be cases where an interim injunction would be appropriate where defamatory statements are part of the harassment and “where that harassment has additional elements of oppression, persistence or unpleasantness, which are distinct from the content of the statements” . The fact that conduct complained of consists of, or includes, the making and repetition of statements which a defendant will seek to justify at trial meant:
“that a court must scrutinise very carefully claims that that line has been crossed in any particular case, and ensure that any relief sought, while restraining objectionable conduct, goes no further than is absolutely necessary in interfering with article 10 rights” 
The test the Court used in considering each part of the defendant’s conduct was the one set out in Majrowski v Guy’s and St Thomas’ NHS Trust  UKHL 34 where Lord Nicholls said that
“courts will have in mind that irritations, annoyances, and even a measure of upset, arise at times in everybody’s dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the misconduct must be of an order which would sustain criminal liability under section 2.” 
Interestingly the Court in this case appears to have taken the truth or falsity of the statement into account in assessing whether or not it constituted harassment: see for example, “on the assumption that Dr Cave would seek to justify these allegations at trial, I do not consider that they are capable of amounting to harassment of an individual” . This is odd, as one would assume that all potential harassers facing a possible injunction would tell a judge that they are going to justify their allegations at trial if their conduct otherwise would be held to be capable of harassment. The better analysis is probably that the truth or falsity of the statements (as far as it can be assessed) was considered to be a relevant factor in deciding whether the conduct was unreasonable and whether it was necessary to restrain Mr Cave’s freedom of expression. And in this case it was found not to be necessary to curtail Mr Cave’s article 10 rights.
Ampito v Pask
Finally, an anti-harassment injunction was granted in the case of Ampito Ltd v Pask (unrep, but see 5RB case note) in relation to alleged harassment of a group of companies and a company director by a former employee who was using emails, message boards and social media sites to make defamatory allegations.
The fact that some of the content made wholly unfounded and untrue defamatory allegations would have made the balancing exercise that the court had to conduct easier. In addition the draft order permitted ‘good faith reports of the defamatory allegations to public authorities’ and thus was held to strike the appropriate balance between stopping harassment and allowing freedom of speech.
These rulings show that courts are willing to grant anti-harassment injunctions, even when the defendant claims that the defamatory allegation is true, if striking the appropriate balance means that the defendant’s freedom of speech needs to be curtailed until the trial is heard. They also demonstrate that Courts are aware of the wider Article 10 rights of the public as applications to sit in private were not granted but reporting restrictions/restrictions on access to the court file orders were made instead.
Sara Mansoori is a barrister at Matrix Chambers, specialising in media and information law.