Coulson & Ors v Wilby

Interim injunctive relief may restrain internet publication where the claimant is likely to establish harassment at trial and the requirements of Human Rights Act 1998, section 12(3), are satisfied. Harassment requires a targeted course of conduct occurring on at least two occasions, objectively calculated to cause alarm or distress, and objectively oppressive and unacceptable in context. Continuous publication on a website may satisfy the requirement for conduct on two occasions. Personal vilification of public servants, even where linked to matters of public interest, may be oppressive harassment when it goes beyond legitimate criticism and amounts to torment.

Three IPCC casework managers sought interim injunctions against Neil Wilby in respect of material published on his websites and against Peter Hofschröer in respect of blog posts and related online publications. The publications accused the claimants of dishonesty, corruption, incompetence and other serious misconduct, and included photographs taken from private Facebook profiles.

The defendants did not appear. The applications concerned whether the publications amounted to harassment under the Protection from Harassment Act 1997, whether any statutory defence arose, and whether the threshold for interim restraint under section 12(3) of the Human Rights Act 1998 was met.

1. Interim threshold. Applying Cream Holdings v Banerjee [2005] 1 AC 253, the court should generally be slow to grant an interim restraint order unless satisfied that the applicant is likely to succeed at trial, while taking account of article 10 and other Convention rights. The claimants satisfied that threshold.
2. Elements of harassment. The relevant conduct had to occur on at least two occasions, be targeted at the claimant, be objectively calculated to cause alarm or distress, and be objectively oppressive and unacceptable. The social or working context was relevant. A distinction had to be drawn between conduct that was merely unattractive or unreasonable and conduct amounting to torment. This summary was taken from Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) and the principles derived from Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224.
3. Publication and repetition. Publication on a website could found liability for harassment, following Thomas v News Group Newspapers Ltd [2002] EMLR 4. Continuous and intermittently updated online publication could constitute conduct occurring on more than two occasions. The approach in Law Society v Kordowski [2014] EMLR 2 supported that conclusion.
4. Application. The allegations were targeted, plainly calculated to cause alarm and distress, and went far beyond unattractive or unreasonable criticism. In their tone and content they were oppressive and tormenting. No material suggested that the conduct was pursued for a statutory purpose or was reasonable under section 1(3) of the 1997 Act. Any public interest in criticism of public officials did not extend to personal abuse and vilification.
5. Disposition. The claimants were likely to establish that publication should not be allowed. The court granted the relief sought, subject to hearing counsel on the precise terms of the order, particularly its mandatory provisions, so that it did not exceed what was necessary to stop the harassment.