The years since the introduction of the Defamation Act 2013, and the heightened threshold of the serious harm test, have seen a sustained increase in the number of claims pursued under alternative causes of action such as privacy, malicious falsehood, and harassment.

In a Judgment handed down last week, the High Court has provided welcome reassurance to the press that such alternative claims should not be seen by claimants and their lawyers as an easy option to be substituted where an earlier claim for libel has failed.

The case, Sube v (1) News Group Newspapers Limited & (2) Express Newspapers, was brought by a married couple who had moved to the U.K. from France together with their 9 children.

Following the publication of several articles by the Defendants, the Claimants were widely criticised for their rejection of an offer of a five bedroomed house by Luton Borough Council.

The articles, published on the Defendants’ respective websites, attracted a significant number of comments from readers, some of which were highly offensive towards the Claimants, who both wrote extensive witness statements complaining of the serious and detrimental effect that both the articles and the comments had had on their lives.

Interestingly, this is not the first time that these Claimants and Defendants have faced each other in court.

Originally, following the publication of the articles and comments, the Claimants had launched proceedings for defamation, harassment and breaches of Data Protection.

In 2018, Mr. Justice Warby had struck out the defamation claim for reasons that I won’t go into here, and this was the second part of the proceedings which focused on the harassment and data protection elements of the claim.

Though the data protection element of this claim is interesting (to lawyers at least!), for the purposes of this article, it is the harassment angle that is of particular note.

This is only the second time that a claim for harassment by publication has gone to trial, but that’s not to say that the concept itself is a novel one. It has been settled for some time that it is possible for a series of publications to amount to harassment of an individual.

In a decision that will undoubtedly be welcomed by the press, and defence lawyers alike, Warby J. in his judgment stated that “Nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment by media publication…it will be a rare and exceptional case in which these criteria are satisfied.”

It was further noted that particularly in cases of alleged harassment by publication, the Court must be especially mindful of the threshold of gravity required and that care must be taken to balance the competing rights of the parties carefully, ensuring that the  Article 8 rights of the claimant are upheld without exerting undue influence in relation to the Article 10 rights of the media.

Warby J. also commented that the assessment of the court as to the harmful tendency of the statements complained of must be objective and not swayed by the subjective feelings of the claimant.  On this basis, it was necessary to put the emotive witness statements supplied by the Claimants out of mind in order to carry out his objective assessment.

In summary, the Judge found that the Claimants had failed to prove that either Defendant was guilty of a “course of conduct” sufficient to satisfy the requirements of harassment legislation, and he noted that the burden of doing so, which lay with the Claimants, was a heavy one.

In light of the potentially grave chilling effect that a finding in favour of the Claimants would have had on the media industry, the confirmation of such a high hurdle for future claimants to overcome in harassment-by-publication claims is strongly supportive of the vital principle of freedom of expression in reporting ongoing matters of public interest.

Footnote for regional journalists – the Defendants in this case were the publishers of The Sun and the Express.  But the story originally appeared in the Milton Keynes Citizen, which just goes to show that these principles don’t just apply to the nationals!