A recent Court of Appeal decision in the case of Esther Thomas v News Group Newspapers and Simon Hughes has opened the door for people who suffer alarm or distress through articles published by the media to sue for harassment.
In July last year, The Sun published an article criticising Esther Thomas, a police clerk, for having brought complaints against police officers about their treatment of an asylum seeker. The article, which described Ms Thomas as a "black clerk", blamed her for the demotion of two officers and for the fine imposed on a third. Readers’ letters were later published attacking Ms Thomas’s actions and readers were invited to contribute to a fund to pay the fine. Ms Thomas, claimed she received racist hate mail as a result and brought proceedings against The Sun, relying on Section 1 of the Protection from Harassment Act 1997. Under Section 1, a victim of harassment who suffers alarm or distress can bring proceedings seeking an injunction as well as damages. The alarm or distress must result from a course of conduct (ie more than a single act). The act was primarily intended to combat stalkers but it is generally accepted that it can also be used against the media where, for example, a journalist repeatedly doorsteps someone.
Ms Thomas’s claim was groundbreaking because she didn’t complain of direct, physical harassment but of articles published in a newspaper.
The Sun applied to strike out the claim at a hearing at Lambeth County Court. However, it failed, the judge ruling that Ms Thomas had made out an arguable case.
The Sun, therefore, appealed to the Court of Appeal. The paper conceded that the act went further than just addressing stalking and that it was in theory possible for a newspaper to be liable for harassment through publishing articles. However, it contended that the wide interpretation given at first instance was incompatible with the right to freedom of expression under the Human Rights Act 1998.
The Court of Appeal rejected the appeal. It noted that the rights of the media should not be interfered with lightly. However, this was the precursor to it ruling that harassment in the act should not be given a restrictive meaning. It stressed that it was the effect on the victim which defined harassment, not the form of the conduct. It therefore ruled that Ms Thomas did have an arguable case that the tone of the articles, in particular the reference to her colour, was unreasonable and that it was foreseeable that readers would send racist hate mail as a result.
People under media scrutiny have another string to their bow in addition to emerging privacy rights. As Desmond Browne, QC, counsel for The Sun put it, the judgment raises the prospect that the act could result in judges becoming censors of the press.
David Attfield, solicitor in the Media Group of Lovells