Theodore Piepenbrock v London School of Economics and Political Science & Ors.

A publisher or source does not ordinarily owe the subject of a publication a duty of care in negligence to protect reputation or prevent psychiatric injury. A novel duty must be developed incrementally by analogy with established authorities, having regard to coherence, policy and freedom of expression.

Harassment by publication requires conduct reaching the high threshold of oppressive and unacceptable behaviour, ordinarily involving an exceptional abuse of media freedom. Foreseeable distress, robust criticism or repeated publication of substantially the same article is insufficient.

Employment discrimination claims belong in the Employment Tribunal, while claims concerning services or public functions must fall within the relevant statutory context. Claims under the Human Rights Act 1998 require conduct by a public authority.

The claimant, formerly employed by the London School of Economics and Political Science, brought proceedings against LSE-related defendants and Associated Newspapers-related defendants. He alleged negligence, harassment under the Protection from Harassment Act 1997, discrimination, Human Rights Act violations and data protection breaches arising principally from newspaper articles published in October 2018 and related conduct.

The claimant had previously brought proceedings concerning his employment and a defamation claim concerning the articles. The earlier defamation claim did not proceed because the claim form was not served within its period of validity, and costs remained unpaid.

The defendants applied to strike out the claims, obtain summary judgment, stay surviving claims pending payment of earlier costs, and retain the case in the Media and Communications List. The central issues were whether any pleaded cause of action was legally arguable and whether the surviving data protection allegations should be stayed.

1. Negligence. The pleaded claims against the LSE and Associated Newspapers defendants were struck out. The claimant had no realistic prospect of establishing a duty of care owed by a publisher or source to the subject of an article. The alleged relationship, publication and pre-publication communications did not establish sufficient proximity. The pleaded case was unlike negligent misstatement or the narrowly defined employment-reference context in Spring. Imposing such a duty would substantially expand the law and circumvent the safeguards of defamation law, including limitation, serious harm and established defences.
2. The proposed amendment to add intentional infliction of psychiatric injury was refused. The tort requires conduct directed at the claimant, absence of justification, an intention to cause physical harm or severe mental distress, and recognised psychiatric injury. Those matters were not pleaded and the proposed claim had no realistic basis.
3. Harassment. The claims under the Protection from Harassment Act 1997 were struck out. Harassment requires a persistent and deliberate course of unreasonable, oppressive and unacceptable conduct reaching the criminal threshold. In publication cases, freedom of expression requires something exceptional amounting to an abuse of media freedom. The two substantially identical articles did not constitute separate occasions, foreseeable distress was insufficient, and the articles were not comparable to the exceptional circumstances in Thomas. Pursuit of unpaid costs under a court order was lawful and not harassment.
4. Discrimination and human rights. The Equality Act claims were struck out. Employment allegations fell within the Employment Tribunal’s jurisdiction, while publication and source allegations were not the provision of services or the exercise of public functions under Part 3. The Human Rights Act claims also failed because the defendants were not public authorities in respect of the acts relied upon.
5. Data protection and stay. Allegations concerning notification of the Information Commissioner, criminal offences, monetary penalties and disclosure issues already capable of being pursued in the earlier litigation were struck out. The recent subject-access allegations were inadequately pleaded but not conclusively shown to be hopeless. Any surviving claims were stayed under CPR 3.4(4), or alternatively CPR 3.1(2)(f), until payment of the £55,000 ordered on account of costs in the earlier claim.
6. The negligence, Equality Act and Human Rights Act claims were certified totally without merit. The case remained in the Media and Communications List, and the claimant was directed to communicate through solicitors on the record.