When can publishing newspaper articles amount to harassment?

The High Court has struck out part of a harassment claim against the publisher of the Daily Mail and Mail Online. Unless the Judge's order is successfully appealed, the remaining harassment claim will proceed to trial.

Readers may remember some of the facts that gave rise to the harassment claim.  The claimant Zipporah Lisle-Mainwaring is a wealthy widow who bought an expensive property in Kensington with a view to converting it into a luxury residence for herself with a mega-basement containing a swimming pool, gym and cinema.  Following the refusal of planning permission (which was later granted), she took the unusual step of painting the front of the property in red and white candy stripes such that it stood out very conspicuously from its mews neighbours.  In the words of His Honour Judge Moloney QC sitting as a High Court judge: "Not surprisingly, this literally colourful action attracted much wider attention to the claimant and her planning dispute, as she must have realised would happen".           

The story came to the attention of the Mail, which made contact with the claimant and began publishing stories about her and her planning dispute.  Those contacts and stories are together alleged by the claimant to have constituted a course of conduct amounting to harassment of her.

The claim is slightly complicated by the existence of an earlier libel complaint against the Mail.  That complaint concerned two articles about the claimant's relationship with her step family and resulted in the issue of libel proceedings against the Mail.  Those proceedings were determined by HH Judge Parkes QC following the acceptance of an offer of amends.  That determination took place before Judge Moloney handed down his judgment in the harassment claim.

The judgment in the harassment claim sets out details of the 10 contacts and nine articles relied on by the claimant.  Only two of the 10 contacts with the claimant were to her directly: an email and a visit to her gated home in Geneva.  The other contacts were with her professional advisers.

The last contact and article were in July 2015.  The claimant had begun her libel action against the Mail in June.  In September the claimant's solicitors said they were thinking of amending their claim to plead harassment.  In November the claimant accepted the offer of amends in the libel action.  In December she sued for harassment. 

Following service of the Defence and Reply the defendant publisher, Associated Newspapers, applied to strike out the harassment claim and/or sought summary judgment.  As Judge Moloney summarised them, the grounds of the application were essentially that the matters complained of were either incapable of constituting harassment at all or were insufficiently serious to render them actionable.  Associated further claimed that the harassment action was an abuse on Jameel grounds as the damages even if she succeeded could not possibly justify the huge costs and court time entailed.

The judge agreed with Associated that the correct approach was to ask whether the pleaded case "can possibly satisfy the Majrowski requirement that the conduct complained of is so oppressive as pass the threshold of criminality " (Majrowski v Guy's and St Thomas's NHS Trust [2006] HL 34) 

The judge struck out the claim based on the journalistic contacts.  He noted that a degree of contact with the claimant and her advisers was unavoidable following her "dramatic act".  Not only was the journalists' behaviour well within the limits of what is acceptable (on the claimant's own case): it was "a tribute to Reynolds and the higher professional standards it has encouraged".  None of the acts complained of constituted harassment.

The judge declined to strike out the claim based on the articles.  The judge considered it "well arguable"  that the Mail had published the articles not because they were relevant to the planning dispute but because they were about someone their readers loved to hate and would therefore be further clickbait as they discredited her yet further.  Accordingly, he could not say the articles could never be said to constitute harassment.  Nor could it be said that the claimant, despite having already recovered libel damages for two of the articles, could never recover worthwhile damages for harassment.

The use of harassment as a cause of action against the media has been largely limited to the use of intrusive news gathering methods that go well beyond generally accepted limits.  The courts have, for example, granted injunctions in favour of beleaguered celebrities such as Amy Winehouse to stop paparazzi from chasing them on high speed motorbikes or placing them under siege in their own homes.  For a court to hold that a newspaper publisher is guilty of harassment by publishing a series of articles about a claimant, particularly a claimant who has already successfully sued them for libel, would be breaking new ground.  Further developments in this case will be watched with great interest.  Associated Newspapers is currently considering a possible appeal and the claimant has said that if Associated gets permission to appeal, she will seek to cross-appeal against the judge's finding against her.