Sube & Anor v News Group Newspapers Ltd & Anor (Rev 1)

Harassment by media publication requires an objectively oppressive and unacceptable course of conduct of sufficient gravity to sustain criminal liability. Distress alone does not meet that threshold. Because liability restricts freedom of expression, press publication will amount to harassment only in a rare or exceptional case involving a conscious or negligent abuse of media freedom.

The court must assess each publisher separately and examine the publications holistically, including their content, presentation, frequency, persistence and relationship to fresh newsworthy events. Unwittingly facilitating reader comments through a semi-automatic system is not targeted harassment where the publisher lacks knowledge of the offending content.

Relief under section 10(4) of the Data Protection Act 1998 requires an accrued claim and continuing non-compliance with a justified notice.

A married couple brought claims against two newspaper publishers arising from articles and online reader comments about the couple’s dispute with a local authority over housing. They alleged harassment contrary to sections 1 and 3 of the Protection from Harassment Act 1997 and sought relief concerning the reader comments under section 10 of the Data Protection Act 1998.

Earlier rulings had dismissed the defamation claims and excluded or struck out claims in malicious falsehood, discrimination and exemplary damages: [2018] EWHC 1234 (QB) and [2018] EWHC 1961 (QB). A subsequent disclosure judgment confirmed that no section 14(2) data-protection claim was being pursued: [2020] EWHC 358 (QB).

The principal issues were whether the articles and reader comments constituted courses of conduct by either publisher amounting to harassment, whether the required knowledge was established, whether publication was reasonable, and whether either publisher had failed to comply with the section 10 notices.

1. Disposition. Judgment was entered for both defendants on every claim under the Protection from Harassment Act 1997 and the Data Protection Act 1998. Neither claimant proved harassment, and no section 10(4) remedy was available. Damages therefore did not arise.

2. Harassment is not established merely because publications cause alarm or distress. The conduct must objectively be persistent, deliberate, unreasonable and oppressive, and serious enough to sustain criminal liability. In a publication case the court must protect private-life rights while avoiding undue interference with Article 10. Media liability will therefore arise only in the rare or exceptional case involving a conscious or negligent abuse of press freedom.

3. Each publisher’s conduct and knowledge had to be assessed separately. The September articles and the later articles prompted by the family’s move were distinct groups rather than one continuous course. In the Express Group, the separate editorial decisions of the Daily Express and Daily Star could not artificially be aggregated merely because the same company owned both newspapers.

4. The articles concerned matters of legitimate interest and expressed robust tabloid comment. Their content, tone, presentation and frequency did not cross the boundary into oppressive, criminal conduct. A holistic assessment included whether coverage was repetitive and taunting or was prompted by fresh newsworthy events. The claimants’ subjective distress could not determine liability.

5. The publishers facilitated reader comments through semi-automatic systems, but the offending comments were written and initiated by readers. The evidence did not establish that the relevant journalists or editors knew their content. Unwitting facilitation of a relatively small number of offensive or racist comments was neither targeted nor oppressive conduct by the publishers. Nor was an intention to incite racial or xenophobic hatred proved.

6. Actual or imputed corporate knowledge was not established. In the case of a corporate publisher, the claimants needed to identify an employee or agent possessing the relevant knowledge. No such person was identified. Alternatively, each defendant proved that its publication was reasonable under section 1(3)(c).

7. The section 10 claims were premature because they were pleaded before the defendants’ statutory response period had expired. News Group had already disabled public access to the comments, while the Express Group removed the relevant articles and comments within the statutory period. Inactive storage or archival retention was outside the pleaded notice and could not cause the alleged damage or distress.

• High Court, present judgment: Judgment for both defendants on the remaining harassment and data-protection claims: [2020] EWHC 1125 (QB).
• High Court, disclosure application: Steyn J dismissed the claimants’ application for specific disclosure and recorded that no section 14(2) claim under the Data Protection Act 1998 was being pursued: [2020] EWHC 358 (QB).
• High Court, preliminary issues and applications: Warby J dismissed the libel claims, excluded or struck out further causes of action and stayed the data-protection claims pending the relevant determination: [2018] EWHC 1234 (QB) and [2018] EWHC 1961 (QB).