The case of Sube v News Group Newspapers is a rare claim for harassment brought against a media publisher – only the second such claim to have proceeded to trial in England and Wales. In a judgment handed down on 7 May 2020 ( EWHC 1125 (QB)), Warby J dismissed the claims brought against News Group and Express Group.
The judgment contains an emphatic restatement of the principles engaged in a harassment claim against a media publisher: Only an exceptional case, involving nothing short of a conscious or negligent abuse of media freedom, will justify a finding of harassment. The case usefully highlights some of the inherent difficulties in pursuing such a claim.
In September 2016, Mr and Mrs Sube were the subject of a series of articles which appeared in the print and online versions of The Sun, The Daily Star and The Daily Express (among others). The articles related to a dispute that Mr and Mrs Sube were engaged in with their local authority concerning the adequacy of social housing provision to support their family of ten. The articles contained pointed criticism of the couple. By way of example, the first article, published in The Sun on 7 September 2016 asked “Are they serious? First picture of four-bed house that jobless couple with eight kids slammed council for offering.” The remaining articles followed a similar line. In October 2016, following a resolution of the dispute with the local authority, the Sube family were moved into a larger council house. This prompted a further series of articles in October and November 2016.
The online versions of the articles were accompanied with reader comments, the vast majority of which were also critical of Mr and Mrs Sube – and some of which were racially abusive.
The Claimants had initially brought a claim in libel. At a preliminary issues hearing, that claim was dismissed (see  EWHC 1234 (QB)), Warby J finding that none the articles or comments satisfied the serious harm requirement in s 1 of the Defamation Act 2003.
Two claims proceeded to trial:
- First, a claim pursuant to s 10 of the Data Protection Act 1998 (“DPA 1998”), alleging that the Defendants had failed to comply with a notice to cease processing personal data, where that processing was likely to cause substantial damage or substantial distress.
- Secondly, a claim pursuant to s 3(1) of the Protection from Harassment Act 1997 (“PHA 1997”), alleging that the publication of the articles and the associated user comments constituted harassment.
The Claimant’s DPA 1998 claims were dismissed shortly (see -). The claims were premature, as they were brought prior to the accrual of the cause of action. The particulars of claim were served only 8 days after issuing the notice under s 10(1) of the Act, and well within the 21-day period for a response to such a notice provided for in s 10(3) of the Act. In any event, Warby J was satisfied that each of the Defendants had complied in substance with the notice, and had ceased processing the personal data within the relevant period.
Warby J set out the principles to be applied to a claim for harassment under the PHA 1997. First, he rehearsed the principles applicable to harassment claims generally (at ). 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”: Hayes v Willoughby  UKSC 17. Importantly, conduct which constitutes “harassment” per s 1 of the PHA 1997 is not only tortious, but criminal. This inevitably influences the way in which courts will approach the threshold of “harassment”: the conduct must be unacceptable to such a degree that the gravity of the misconduct would sustain criminal liability.
Secondly, Warby J considered the way in which those principles apply to a claim for harassment by publication, brought against a media publisher (at -). Plainly, such a claim engages the publishers’ rights pursuant to Article 10, ECHR. In that connection, Warby J enumerated six propositions which apply to the resolution of claims of this kind:
- It is for the claimant to demonstrate that the conduct complained of is unreasonable, to the degree required by the authorities cited above; and it is not a question of assessing the reasonableness of any opinions expressed in the publications complained of. […]
- The Court must test the “necessity” of any interference with freedom of expression by using the well-known three-part test: “The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given … to justify it are relevant and sufficient.” Nilsen and Johnsen v Norway (1999) 30 EHRR 878 .
- In general, the techniques of reporting, including the tone and editorial decisions about content, are matters for the media and not the Court to determine […]
- The court’s assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant:
- Applied to the tort of harassment, these principles mean that nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment. […]
- It will be a rare or exceptional case in which these criteria are satisfied, in relation to media publication.
Having resolved various factual disputes, Warby J turned to consider the case against each of the Defendants individually. Several of the conclusions merit emphasis.
First, Warby J considered that the publication of the articles did not constitute a single “course of conduct” for the purposes of the PHA 1997 (at , [113(1)]). Rather, they were properly to be analysed as falling within two distinct courses of conduct: the initial articles from September 2016 and, separately, the subsequent articles after the family had been provided with alternative accommodation. Not only were those articles separated by a period of some weeks but, it was found, were prompted “by new events and new information, and they had different content.”
Secondly, part of the Claimants’ harassment claim had related, not to the publication of the articles, but to the user comments which had appeared on the online versions of those articles. Warby J considered that the comments also fell to be considered as a “course of conduct” separate to the publication of any of the articles (at , [113(5)]). However, the evidence before Warby J was that the process by which user comments appeared online was initiated by readers, and was semi-automatic. Therefore, taken at its highest, the Defendants’ conduct vis-à-vis those comments was “unwittingly allowing or facilitating the communication by some readers to some other readers of a relatively small number of Posts, some of which were racist and offensive to the claimants”. This, Warby J held, could not be regarded as part of a course of “targeted”, oppressive, and criminal conduct by the defendant. Accordingly, the Defendant’s conduct in relation to the user comments was not “harassment” (at -, [113(8)]).
Thirdly, the Defendants’ conduct – taken as a whole (including both the articles and the user generated comments) – did not constitute harassment, in line with the principles set out above. Warby J reasoned (at , in relation to News Group) that:
This is because, in short, (a) the subject matter of the Articles was of legitimate interest to the public, and the reporting could only be held to be tortious if that was an interference with freedom of speech that is necessary in order to protect the rights of the claimants; (b) the content and manner of the publication of the Articles and Posts, even considered as a single course of conduct, was not offensive, insulting, alarming or distressing to the degree that would be necessary to sustain criminal liability.
Fourthly, in order to constitute “harassment” under the PHA 1997, the defendant must have known or ought to have known that their conduct amounted to harassment (s 1(1)(b), PHA 1997). Warby J found the allegation that the Defendants had actual knowledge that their conduct amounted to harassment to be “untenable” (at , [113(7)]).
Fifthly, and in any event, Warby J would have found that each Defendant could avail themselves of the defence of “reasonableness” set out in s 1(3)(c) of the PHA 1997 – for substantially the same reasons as it was found that their conduct did not constitute harassment (at , [113(8)]).
For those reasons, Warby J gave judgment for the Defendants.
Harassment claims against media publishers are rare. Prior to this decision, the only trial of such a claim in England and Wales was Trimingham v Associated Newspapers  EWHC 1296 (QB). That claim was dismissed. Two claims had been brought in Northern Ireland, neither of which were successful: King v Sunday Newspapers Ltd  NIQB 107, Fulton v Sunday Newspapers Ltd  NIQB 100.
Warby J’s judgment serves to emphasise several of the particular difficulties faced by claimants in pursuing harassment claims against media publishers.
First, the threshold for “harassment” is extraordinarily difficult to meet in a claim for harassment by publication. The principles articulated at - of Warby J’s judgment are not novel. However, they helpfully demarcate the robust line that any court will take in assessing such a claim. Only an exceptional case, involving nothing short of a conscious or negligent abuse of media freedom, will justify a finding of harassment. One can readily see that such an approach is justified: a finding of harassment is, in effect, a finding of criminal conduct on the part of a media publisher; and the importance of freedom of expression demands that publishers be permitted latitude in reporting matters of legitimate interest to their audience.
It is interesting to note that this was a claim for harassment by publication only. The Claimants did not seek to claim that conduct by the Defendants’ journalists or photographers, in reporting the stories for publication, were part of the “course of conduct” constituting harassment. Such conduct could prove more fertile ground for harassment claims, given that it is likely closer to the paradigm case of harassment involving stalking.
Secondly, Warby J’s approach to determining the relevant “course of conduct” underscores the difficulties with this cause of action. The various articles about the Sube family were published within a timespan measured in weeks. Nonetheless, because they were prompted “by new events and new information, and they had different content” they were not part of the same “course of conduct”. That may be significant (and even decisive) as to whether any particular course of conduct crosses the threshold of “harassment”, or whether a given defendant has a defence by reason that their conduct was “reasonable” per s 1(3)(c) of the Act. Any claimant who has been subject to a protracted campaign of unfavourable media reporting will find it difficult to rely upon the totality of that conduct as constituting a single (necessarily more serious) “course of conduct” on this approach.
The same is true of Warby J’s approach to the relevance of the user comments. Here, it was found that the Defendants’ conduct vis-à-vis the comments was essentially as a passive publisher (who was found not to have encouraged their content). It is difficult to see that such conduct could ever constitute the kind of “unreasonable”, “oppressive” and “targeted” conduct necessary to constitute “harassment”. One could posit alternative scenarios, where the publisher encouraged reader comments of a particular kind, or promoted or endorsed particular comments, which may come closer to satisfying the test.
Of the very few cases brought to trial, there has yet to be a single successful claim for harassment against a media publisher. There is very little in Warby J’s judgment to encourage the bringing of such a claim, except in the most exceptional of circumstances.
Tim James-Matthews is a member of the Matrix Chambers media and information practice group.