Optosafe Limited & Anor v John Mark Robertson

A course of conduct may amount to harassment when its overall character is persistent, deliberate, unreasonable and oppressive, even if individual acts appear innocuous in isolation. The court must assess the conduct objectively, while giving proper weight to freedom of expression under article 10. The truth or falsity of allegations is not usually determinative where the manner of publication is taunting, repetitive or oppressive. The statutory defences for preventing or detecting crime and for reasonableness require proof of their respective statutory conditions. A contractual non-disparagement clause is not void merely because it preserves the right to make protected disclosures where it does not purport to prevent such disclosures.

The first claimant claimed damages-free relief for breach of contractual non-representation and non-disparagement obligations arising from the defendant’s employment and settlement agreements. The second claimant claimed damages and injunctive relief for harassment under the Protection from Harassment Act 1997, in his own capacity and representatively for specified employees, directors and shareholders.

The defendant relied on the statutory defences concerning prevention or detection of crime and reasonableness. The claimants also sought final injunctive relief and a general civil restraint order. The central issues were whether the defendant’s publications and communications constituted a course of conduct amounting to harassment, whether either defence applied, whether the contractual restrictions had been breached, and what relief was appropriate.

1. Contract. The Service Agreement and Settlement Deed were valid and enforceable contracts, irrespective of whether they had also been validly delivered as deeds. The defendant had no pleaded case of invalidity, and the contractual ingredients of offer, acceptance, consideration and intention to create legal relations were present. Under s.46(1)(b) of the Companies Act 2006, delivery was presumed on execution unless a contrary intention was proved.
2. The defendant’s use of names associated with Optosafe and the Orbis group breached the non-representation clause. His numerous public and derogatory LinkedIn publications breached the non-disparagement clause. The clause did not purport to prevent protected disclosures under ss.43A and 43J of the Employment Rights Act 1996; reports to public authorities remained permissible within the interim injunction’s terms.
3. Harassment. The emails and LinkedIn publications formed a course of conduct under the Protection from Harassment Act 1997. They were closely linked by character, tone and subject matter and were targeted at identifiable individuals. The statutory threshold was met even though there had been a gap of several months, because the later publications repeatedly used material from the earlier conduct.
4. Viewed as a whole, the campaign was persistent, deliberate, unreasonable and oppressive. Its repetitive, taunting, mocking, aggressive and threatening features crossed the boundary between unattractive conduct and conduct capable of sustaining criminal liability. The court assessed the course objectively. Publication on LinkedIn was capable of causing the targeted individuals to encounter the material, and the fact that some communications were quarantined did not prevent the conduct from amounting to harassment.
5. The defendant knew, or at least ought to have known, that his conduct amounted to harassment. The prevention-or-detection-of-crime defence failed because he had not shown rational consideration of the material suggesting criminality, that the conduct was appropriate for that purpose, or that crime prevention or detection was his dominant purpose. His predominant purpose was retaliation and punishment.
6. The reasonableness defence also failed. Even if some publications were perceived as whistleblowing or journalism, the relentless public campaign and direct communications in vitriolic terms were wholly unreasonable in the circumstances and disproportionately interfered with the victims’ rights.
7. Relief. The claimants succeeded. A final injunction was granted to enforce the contractual restrictions and restrain further harassment. The caveat permitting reports to public authorities was removed, subject to wording allowing responses where investigating bodies sought information. Damages of £25,000 were assessed for the second claimant, subject to the claimants’ opportunity to amend the statement of value; otherwise the award was capped at £10,000. A general civil restraint order was imposed for three years.