Tort

Harassment - Prohibition of harassment - Invasion of privacy

Trimingham v Associated Newspapers Limited Invasion of privacy: Queen's Bench Division (Mr Justice Tugendhat): 24 May 2012

Section 85 of the Copyright Designs and Patent Act 1988, so far as material, provides: '(1) A person who for private and domestic purposes commissions the taking of a photograph... has, where copyright subsists in the resulting work, the right not to have - (a) copies of the work issued to the public, (b) the work exhibited or shown in public... and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right.'

The claimant was the political aide to Chris Huhne MP. In May 2010, Mr Huhne became Secretary of State for Energy. In 2008, the claimant and Mr Huhne had started an affair, unknown both to Mr Huhne's wife and the claimant's civil partner. In June 2010, Mr Huhne announced that he was leaving his wife for the claimant. The claimant brought a claim against the defendant publisher in respect of some 65 articles published by the defendant and a number of 'readers' comments' posted on the defendant's publications' websites.

The claimant alleged that the defendant had: (i) harassed her contrary to section 1 of the Protection from Harassment Act 1997 (the 1997 act) (the harassment claim); (ii) misused private information in respect of the claimant pursuant to the Human Rights Act 1998 (the 1998 act) and article 8 of the European Convention (the Convention) on Human Rights (the privacy claim); and (iii) interfered with her privacy right under section 85 of the Copyright Designs and Patent Act 1988 (the 1988 act) in respect of two photographs published by the defendant which were cropped versions of photographs taken at and immediately before the claimant's civil partnership ceremony in June 2007 (the photographs claim). In particular, the claimant complained about the defendant's references to her bisexuality and appearance.

In respect of the harassment claim, the issues for determination were: (i) whether the distress that the claimant suffered was the result of the course of conduct that she complained of; and (ii) if so, ought the defendant to have known that that course of conduct amounted to harassment. Consideration was given to the questions: (i) whether the claimant was a purely private figure or not; and (ii) was she in other respects a person with a personality known to the defendant such that it ought not to have known that the course of conduct amounted to harassment.

In respect of the privacy claim, the principal issue for determination was whether the claimant had a reasonable expectation of privacy in respect of the information complained of. In respect of the photographs claim, the principal issue for determination was whether the photographs had been commissioned within the meaning of section 85 of the 1988 act. The claim would be dismissed.

(1) It was established law that for the court to comply with its obligations under section 3 of the 1998 act, it had to hold that a course of conduct in the form of journalistic speech was reasonable under section 1(3)(c) of the 1997 act unless, in the particular circumstances of the case, the course of conduct was so unreasonable that it was necessary and proportionate to prohibit or sanction the speech in pursuit of one of the aims listed in article 10(2) of the Convention, including, in particular, for the protection of the rights of others under article 8 of the Convention. The test required the publisher to consider whether a proposed series of articles, which was likely to cause distress to an individual, would constitute an abuse of the freedom of the press which the pressing social needs of a democratic society required should be curbed. In considering the effect of a course of conduct which consisted of speech, the court might have to decide what meaning the words conveyed (see [53], [54], [57] of the judgment).

In the instant case, the claimant was not a private individual. In her professional capacity, she undertook to work for one of the leading politicians in the capacity of press officer and, in her private capacity, she had conducted a sexual relationship with Mr Huhne. Any reasonable person in the possession of the same information about the claimant as the defendant could reasonably have considered that the claimant was not likely to have been upset by comments or offensive language.

The claimant had not proved that distress had been caused, or that the defendant ought to have know that it would have been caused, by the course of conduct that the claimant complained of. The defendant ought not to have known that its conduct would be sufficiently distressing to be considered oppressive or amount to harassment. Although any word could acquire a pejorative meaning in a particular context, however, no reasonable reader of the words complained of in the instant case would have understood them in a pejorative sense.

In the circumstances, it was not necessary or proportionate for the court to make a finding of breach of the 1997 act against the defendant (see [249], [250], [252]-[255], [273] of the judgment). Redmond-Bate v DPP [1999] 7 BHRC 375 applied; Thomas v News Group Newspapers Ltd [2001] All ER (D) 246 (Jul) applied; Saaristo and others v Finland [2010] ECHR 184/06 applied; Wainwright v Home Office [2003] 4 All ER 969 considered; S (a child) (identification: restriction on publication), Re [2004] 4 All ER 683 considered; Majrowski v Guy's and St Thomas' NHS Trust [2006] 4 All ER 395 considered; Livingstone v Adjudication Panel for England [2006] All ER (D) 230 (Oct) considered; Conn v Sunderland City Council [2007] All ER (D) 99 (Nov) considered; Jeynes v News Magazines Ltd [2008] All ER (D) 285 (Jan) considered; Guardian News and Media Ltd, Re [2010] 2 All ER 799 considered; R (on the application of Calver) v Adjudication Panel for Wales [2012] All ER (D) 91 (May) considered.

(2) It was established law that, in determining whether a person had a reasonable expectation of privacy under the Convention and the 1998 act, the question was what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced the same publicity. Further, whilst there would commonly be a reasonable expectation of privacy in respect of the details of a sexual or family relationship, the position was not the same in respect of the bare fact of a sexual relationship (see [284]-[286] of the judgment).

In the instant case, it was unarguable that the claimant could have a reasonable expectation of privacy as to her being bisexual. Further, she could have no reasonable expectation of privacy in respect of the ending of her relationship with her civil partner, nor in respect of cropped photographs of her taken immediately before her civil partnership ceremony (see [294], [303], [318] of the judgment).

Campbell v Mirror Group Newspapers Ltd [2004] 2 All ER 995 applied; Lord Browne of Madingley v Associated Newspapers Ltd [2007] All ER (D) 12 (May) applied; Murray v Big Pictures (UK) Ltd [2008] 3 FCR 661 applied; Douglas v Hello! Ltd [2005] 4 All ER 128 considered; Donald v Ntuli (Guardian News & Media Ltd intervening) [2010] All ER (D) 170 (Nov) considered; Goodwin v NGN Ltd [2011] All ER (D) 45 (Jun) considered; Ferdinand v MGN Ltd [2011] All ER (D) 04 (Oct) considered.

(3) 'Commissioning' as used in section 85 of the 1988 act meant that there had to be an obligation on the part of the commissioned party to produce work and an obligation on the part of the commissioning party to pay money or money's worth (see [334] of the judgment). In the instant case, the claimant had not commissioned the photographs in question within the meaning of section 85 of the 1988 act (see [336] of the judgment).

Apple Corps Ltd v Cooper [1993] FSR 286 considered; Peck v United Kingdom (Application 44647/98) [2003] All ER (D) 255 (Jan) considered; Ultraframe (UK) Ltd v Fielding [2003] All ER (D) 232 (Dec) considered; Campbell v Mirror Group Newspapers Ltd [2004] 2 All ER 995 considered.

Matthew Ryder QC and William Bennett (instructed by Mishcon de Reya) for the claimant; Antony White QC and Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the defendant.