Zdzislaw Sledziewski & Anor v Persons Unknown going by Chapona (aka) Chapona Bicyclette & Anor

Harassment requires a course of conduct that is unacceptable and oppressive, not merely unreasonable or disagreeable. The conduct must be assessed as a whole, although its constituent acts require analysis. A claimant may be a victim where conduct is targeted at another person or company, provided the claimant is foreseeably and directly harmed. Conduct by others may be attributed under section 7(3A) of the Protection from Harassment Act 1997 only where there is active assistance or encouragement. Publication by a citizen journalist engages freedom of expression and requires exceptional circumstances amounting to a conscious or negligent abuse of media freedom before harassment can be established. The interim injunction threshold under section 12(3) of the Human Rights Act 1998 was not met.

The First Claimant, managing director of the Second Claimant, sought an interim injunction restraining the First Defendant, an unidentified cycling-video publisher, on the ground of harassment. The application concerned three YouTube posts about a close pass by a van operated by the Second Claimant and two emails alleging an unjustified threat of trade mark proceedings and seeking compensation. The Claimants also relied on publications by the Second Defendant and abusive third-party comments, arguing that they formed part of the First Defendant’s course of conduct. The First Defendant did not attend the hearing. The central issues were whether that additional conduct could be attributed to him and whether the pleaded conduct was likely to amount to harassment at trial.

1. Application refused. The First Claimant was unlikely, on the evidence then available, to obtain a final injunction for harassment.
2. Harassment under the Protection from Harassment Act 1997 requires unacceptable and oppressive conduct, reaching the criminal threshold. The course of conduct must be assessed as a whole. A claimant may rely on conduct directed at another person or company where he is foreseeably and directly harmed and can properly be regarded as a victim.
3. The Second Defendant’s publications and the End-User comments were unlikely to form part of the First Defendant’s course of conduct under section 7(3A). Communication between the defendants did not presently show active assistance or encouragement. The comments were not attributable merely because the posts made them foreseeable or because a YouTube channel had a comment facility. Knowledge and purpose had to be assessed when assistance or encouragement was provided.
4. The three posts engaged the principles applicable to publication and citizen journalism. The relevant question was whether they amounted to a conscious or negligent abuse of media freedom. The posts did not name the First Claimant in their final form, the allegation that he drove the van was withdrawn, the publications responded to new developments, and the Third Post discouraged harassment. Reader abuse could not, without more, be attributed to the publisher.
5. The emails did not materially alter the position. The threat of trade mark proceedings had an arguable basis because the Claimants had initially admitted that it was unjustified under sections 21 and 21A of the Trade Marks Act 1994. The demand for £10,000 was unreasonable, but the emails did not approach the gravity of the conduct in Worthington v Metropolitan Housing Trust Ltd or Iqbal v Dean Manson Solicitors.
6. Because the injunction would affect Article 10 rights, section 12(3) of the Human Rights Act 1998 required the court generally to be satisfied that restraint was more likely than not to be ordered at trial. That threshold was not met.