Thomas v News Group Newspapers Ltd & Anor

Press publications are capable, in rare and exceptional circumstances, of constituting harassment under the Protection from Harassment Act 1997. The Act does not exclude journalism merely because stalking was its principal mischief.

Harassment requires targeted conduct which is oppressive and unreasonable, as well as conduct foreseeably causing alarm or distress. Robust press criticism which merely causes foreseeable distress will ordinarily not suffice. The court must construe and apply the Act consistently with freedom of expression, and may restrain press publication only where this is necessary.

A pleaded case may nevertheless proceed where a series of publications is arguably racist criticism of an identified person, foreseeably likely to provoke a racist reaction from readers and cause distress.

The claimant was a civilian police clerk who had complained about remarks made by police officers. The appellants published three articles in The Sun, naming her, identifying her as black and identifying her workplace. The claimant alleged that the publications and readers’ letters amounted to a course of conduct which harassed her, provoked racial hostility and caused her distress.

His Honour Judge Cox in the Lambeth County Court refused the appellants’ application to strike out the claim or enter summary judgment. He granted permission to appeal because the meaning of harassment under the Protection from Harassment Act 1997 was a matter of general importance.

The central issue was whether the pleaded publications could arguably amount to harassment, consistently with the appellants’ right to freedom of expression.

1. Appeal dismissed unanimously. Lord Phillips MR gave the court’s reasons, with which Jonathan Parker LJ and Lord Mustill agreed. The claimant had pleaded a realistic case and the claim should proceed to trial.

2. The Protection from Harassment Act 1997 is capable of applying to press publications. Although stalking was the principal mischief addressed by the legislation, journalistic articles are not implicitly excluded. Speech is conduct for the Act’s purposes, and a series of publications can satisfy the requirement for a course of conduct.

3. Section 7(2) identifies the effect of harassment—alarm or distress—rather than providing a complete definition. Harassment is targeted conduct calculated to cause that effect which is oppressive and unreasonable. A claimant must therefore plead facts capable of showing at least arguably unreasonable conduct, notwithstanding that the statutory defence of reasonableness is for the defendant to establish.

4. The court had to construe and apply the Act compatibly with Article 10. Press criticism, even when robust and foreseeably distressing, will generally be reasonable and outside the natural meaning of harassment. Exceptional circumstances are required, and they will be rare. The relevant question is whether the proposed or published course of conduct abuses press freedom in a way which a pressing social need in a democratic society requires to be curbed.

5. Here, taken together, the pleaded publications arguably amounted to racist criticism of the claimant. It was arguable that their references to her race were gratuitous, that they misleadingly attributed the officers’ discipline to a black clerk, and that publication of her name and workplace foreseeably invited hostile correspondence. The claim was therefore not bound to fail. The defects in pleading a course of conduct and knowledge of harassment were amendable and caused no prejudice.

• Court of Appeal (Civil Division): Thomas v News Group Newspapers Ltd & Anor [2001] EWCA Civ 1233. Appeal dismissed; the refusal to strike out the claim or grant summary judgment was upheld.
• Lambeth County Court: His Honour Judge Cox refused the defendants’ application to strike out the particulars of claim under the Civil Procedure Rules or enter summary judgment. Permission to appeal was granted.