I have been trying for ages to do a piece about Trimingham v Associated Newspapers which was of interest because, albeit late in the day, she amended her claims to include one of harassment under the Protection of Harassment Act 1997 in addition to invasion of privacy.
The judgment is so long and detailed that it was very hard both to summarise effectively and also to include in a post of reasonable length, a discussion of some aspects which troubled me. Thankfully, I don’t need to worry about summarising any longer because the excellent Gervase de Wilde has done it for me on the equally excellent Inforrm’s Blog.
Taking that piece as read, I will focus on some of the rationale of the decision which I consider to be wrong and therefore troubling if it is going to be relied on in other cases. It should be noted that I do not manage to do this at reasonable length …
Harassment v Freedom of Speech
Leaving aside the tough test for a course of conduct of harassment under the PHA, a claim of harassment by newspapers raises an additional consideration in terms of the interaction with freedom of speech. This was first considered in a very early PHA case, Thomas v News Group Newspaper Ltd  EWCA Civ 1233.
The Sun newspaper published a series articles referring to the claimant whom they identified on each occasion as being black. The Court of Appeal held that in the context it was arguable that the articles were racist and likely to cause the claimant distress and therefore refused to strike out a claim. Note that the Court was not thereby saying the articles were harassment; it was saying that they could be.
On the issue of principle, the Court of Appeal made it clear that the PHA was not to be applied so as to restrict the right of freedom of expression. Therefore press criticism, even if robust, does not constitute unreasonable conduct and so does not fall within the natural meaning of harassment.
Lord Phillips explained that “Before press publications are capable of amounting to harassment, they must be attended by some exceptional circumstance which justifies sanctions and the restriction on freedom of expression that they involve.”
Articles calculated to incite racial hatred provide an example of “exceptional circumstances” as too would be a series of articles targeted at an individual to such an extent as to become oppressive.
Here, Ms Trimingham argued that the excessive repetition of references to bisexuality and homosexuality amounted to taunting. The repetition in 65 articles and other references to her appearance was so offensive and insulting as to be oppressive. That argument was ultimately rejected for all (or a combination?) of the following reasons (among others too):
- The references to her sexuality were acceptable journalistic practice and were not directly targeted towards her. The references to her appearance were much less numerous (“only” 4)
- She did not take any proceedings for defamation
- As a quasi-public person, there was no reason to know she would become distressed by the articles; specifically, the journalists could not be expected to know she would suffer the distress she did as opposed to distress from other issues.
The Judge accepted that the repeated references to her sexuality might amount to taunting but because the articles were actually about Chris Huhne MP and therefore referred to Ms Trimingham tangentially, that supposedly took the sting out of them. As the references were not inherently derogatory and the comments about her appearance were very few, overall the conduct was not harassment.
I find that hard to swallow. If she was not the subject of the article, why was it necessary to refer to her sexuality at all? The excuse proferred was that it is common practice to use some sort of label in order to remind readers of who is being mentioned but surely, “his Press Officer” would have sufficed?
The lesbian or bisexual label is indicative of the bizarre assumption of heterosexuals that the lives of homosexuals are somehow defined by whom they choose to sleep with rather than by their professional achievements. In the context, they seem to me to be unnecessary at best and on the face of it prurient and invasive.
I suggest this is evidenced by the less frequent but snide and offensive comments about her appearance. They seem to have been largely disregarded because they were rare but that is to view them in isolation.
It is fundamental to claims for harassment that it is the course of conduct as a whole which needs to be considered not the individual acts. The spiteful remarks about her appearance should not have been disregarded but could have been seen as putting the other remarks in context and evidencing that they too were actually unpleasant and intended to needle.
The suggestion that a claim for harassment should be weakened owing to a failure to take proceedings for defamation strikes me as very flawed. It stems from what is the only other reported case concerning harassment by a newspaper, King v Sunday Newspapers Ltd  NIQB 107;  NICA 8 in which it was said that
“Particularly in the light of the fact that the appellant declined to institute defamation proceedings to challenge the correctness of the thrust of the robust allegations of serious criminality made in the articles we conclude that the judge was correct to conclude that the appellant had not made out a case of harassment.”
There may be some force in this approach where, as was said to be the case in King, the allegations being printed are false but surely not when they are true. Even if an allegation might be defamatory (in that it tends to tends to lower a person in the estimation of right-thinking members of society generally) there is an absolute defence if the allegation is true.
The references to Ms Trimingham’s sexuality and her part in the breakup of Mr Huhne’s marriage were true and so, even if she had brought a claim for defamation, she would have lost. What right thinking person would bring a claim she knew would fail?
Even if there had been a false allegation, why should harassment be measured by whether a claim for defamation has been brought or not? Leaving aside the shorter time limit (12 months not 6 years), defamation is well known to be a highly specialist and expensive area of law which the vast majority of the public could not possibly afford.
A Claimant should be able to choose her cause of action and frame her case freely and without the merit of one cause of action being prejudiced by an election not to pursue another.
At paragraph 144 of the judgment the Judge says ” the distress or other damage (including financial loss) that any claimant must prove if she is to succeed in a claim under the PHA must be distress or damage which a reasonable person in the position of the defendant knew or ought to know that she would suffer as a result of the course of conduct of which she complains.”
I completely disagree:
- We actually know that foreseeability of harm is not a requirement for recovering loss as this was made clear in Jones & Anor v Ruth  EWCA Civ 804.
- We also know that the state of knowledge of the alleged harasser is not relevant as the test of harassment is that of a reasonable person; see R v Colohan on this blog.
- It is also wrong to say that distress or damage must be proved to succeed in a claim. No loss need be proved to justify an injunction.
Of course, for a Claimant to recover damages she will need to prove some actual loss, even if limited to injury to feelings, and that the harassment caused that loss. Failure to prove that loss is a legitimate reason to dismiss a claim for damages but to find that conduct is not harassment because no distress (or other loss) has been suffered is to conflate the concepts of liability and causation.
It is fair to say the Judge did not form a good impression of Ms Trimingham. He did not like her evidence and electing to sue Associated Newspapers when others were guilty of the same conduct seems an odd decision at this distance. All the same, it is hard to disagree with her own remark that the judgment was ‘confused’ and I believe she deserved better; both from the press and from the judgment.