Trimingham v Associated Newspapers Ltd

Press publications will amount to harassment only in rare and exceptional circumstances. The court must interpret and apply the statutory test compatibly with freedom of expression, balancing the claimant’s Article 8 rights against the publisher’s Article 10 rights and asking whether restriction is necessary and proportionate.

A claimant must prove that the complained-of course of conduct caused the relevant distress and that a reasonable publisher should have known it amounted to harassment. Repeated factual references to sexuality in reporting continuing matters of public interest are not, without more, harassment. A person who has publicly assumed a political communications role and participated in a political scandal may have a reduced expectation of privacy. A gratuitous photographer is not commissioned for the purposes of the statutory privacy right in photographs.

The claimant alleged that the defendant newspaper publisher had harassed her and misused private information by publishing 65 articles and online readers’ comments after disclosure of her affair with a Cabinet Minister. She complained principally of repeated references to her sexuality and appearance, disclosures concerning relationships and private conversations, and two photographs connected with her civil partnership ceremony.

She also claimed a statutory privacy right in the photographs under the Copyright, Designs and Patents Act 1988. The court had to decide whether the publications and newsgathering constituted harassment, whether the information engaged a reasonable expectation of privacy, and whether the photographs had been commissioned for private and domestic purposes.

1. Claim dismissed. The defendant had not harassed the claimant, misused her private information, or infringed a statutory privacy right in the photographs.
2. Under the Protection from Harassment Act 1997, press publications require exceptional circumstances before they can be restrained or sanctioned. Applying Thomas v News Group Newspaper Ltd [2001] EWCA Civ 1233 and the Article 8/Article 10 balance stated in Re S (A Child) (Identification: Restriction on Publication) [2004] UKHL 47, the question was whether the proposed or actual series of articles was an abuse of press freedom which a pressing social need required to be curbed.
3. The claimant had proved distress, but had not shown that the particular matters pleaded, rather than the true and damaging exposure of the affair or conduct by other publishers, caused it. A reasonable publisher could regard her as a politically connected and experienced communications professional who was robust and had entered a relationship likely to attract public scrutiny. The terms “bisexual” and “lesbian” were factual and, in context, would not be understood by a reasonable reader as pejorative or as attributing her conduct to her sexuality.
4. Although repetition may in another case become oppressive taunting, the repetitions here accompanied separate newsworthy developments principally concerning the Minister. The claimant was a significant secondary participant in that public story. The articles and readers’ comments therefore did not make restriction or sanction necessary and proportionate. The court made clear that this conclusion did not authorise indefinite repetition in future circumstances.
5. For misuse of private information, the court applied the two-stage inquiry from Murray v Express Newspapers Plc [2009] Ch 481. The claimant had no reasonable expectation of privacy in her sexuality, the end of her civil partnership, or the cropped photographs. Her civil partnership and relationships were not kept private, and the photographs disclosed no significant information beyond what was already public. The remaining relationship and sexual-information complaints either added insufficiently serious material or fell within editorial judgment after the Article 8/Article 10 balance.
6. Section 85 of the Copyright, Designs and Patents Act 1988 required a commission involving obligations to create the work and to pay money or money’s worth. The photographer’s voluntary wedding present created neither obligation. The statutory claim therefore failed.

not stated in the judgment.