APPENDICES
loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non- [pejorative] meanings are available. (3) Over-elaborate analysis is best avoided… (5) The article must be read as a whole, ..."
¶3.153 In relation to the defence of reasonableness, Tugendhat J noted in interpreting the decision in Thomas that:
"for the court to comply with HRA s.3, it must hold that a course of conduct in the form of journalistic speech is reasonable under PHA s.1(3)(c) unless, in the particular circumstances of the case, the course of conduct is so unreasonable that it is necessary (in the sense of a pressing social need) and proportionate to prohibit or sanction the speech in pursuit of one of the aims listed in Art 10(2), including, in particular, for the protection of the rights of others under Art 8."
¶3.154 Although the decision is subject to challenge in the Court of Appeal, in Trimingham a narrow
view was taken of the meaning of a private individual; and the Court concluded that the claimant was not a private person by reason of the fact that: 1) in her professional capacity she undertook to work for one of leading politicians in country, and 2) in her private capacity she conducted a sexual relationship with a politician which would lead to him leaving his wife. Ultimately, the Judge accepted that whilst the claimant was upset about the insulting and offensive language about her appearance, he did not accept that the defendant ought to have known that its conduct in relation to that language would be sufficiently distressing to be considered oppressive or amount to harassment and he did not accept that in fact it was so considered by the claimant.275 The Court found that discussion or criticism of sexual relations which arise within a pre-existing professional relationship, or of sexual relationships which involve the deception of a spouse, or a civil partner, or of others with a right not to be deceived, are matters which a reasonable person would not think would be conduct amounting to harassment, and would think was reasonable, unless there are some other circumstances which make it unreasonable. One circumstance which may make such a course of conduct unreasonable is if it interferes with the Article 8 rights of the claimant. However the Judge found that the claimant's Article 8 rights had become very limited because she was not a purely private figure.
¶3.155 The Trimingham decision illustrates the approach that will be adopted by the courts in
assessing whether the publication of an article amounts to harassment. It appears that a key hurdle for any claimant is the need to establish that the journalist would have known that the course of conduct amounted to harassment, which appears from the decision to be a relatively high hurdle.
¶3.156 In addition to the content of publications, methods of news gathering may also amount
1895to harassment. For example, there are a number of cases where interim injunctions have been granted against journalists and photographers to prohibit them from door stepping, or besetting the home of a person they wished to photograph or interview. In AM v News Group Newspapers Ltd & Ors an application for an injunction was made by a person who had become subject to media interest solely by reason of the fact that he was the landlord of a property rented by the cleric Abu Qatada.276 The applicant's home had been visited by journalists who were calling his phone, knocking at his door, and taking photographs of him when he went outside. His children could not go outside. Tugendhat J noted that Article 8 of the ECHR and s.6 of the HRA require measures to be put in place to ensure respect for a person's home
¶Appendix 4 | Legal Materials
and family life, and therefore made an order imposing publishing restrictions prohibiting the publishing or broadcasting of: the claimant's name and address; or any photograph, film, video or image that identified the claimant's address or showed any occupier or invitee within the house or garden of the claimant's address; and also imposed a restraint on harassment in relation to the contacting the claimant or approaching the claimant's address.277 The Judge noted that the order, in so far as it prohibited disclosure of information, was made with a view to preventing interference with the right to respect of one's home and family and not to preventing disclosure of information which is sensitive.
¶3.157 Another example is the case of Ting Lan Hong and KLM v Persons Unknown where Tugendhat
J granted an injunction prohibiting harassment of the mother of the child of actor Hugh Grant, following prolonged harassing conduct from photographers.278 The Court noted that Ms Hong had received numerous calls and messages from journalists, had been regularly followed and photographed without her consent when pregnant, had photographers outside her home every day for a period, and that photographers persisted in attending at her property despite a warning from the PCC to desist from such conduct. The order was granted prohibiting the harassment of the claimant.
¶3.158 These two cases are illustrative of the utility of the PHA in seeking to restrain the conduct
of journalists and photographers where their conduct amounts to harassment within the meaning of the Act. It seems likely that where an individual is faced on more than one occasion with a number of journalists or photographers present at their home, telephoning or attempting to communicate with them in circumstances where distress and alarm is caused, this is likely to justify the grant of an injunction requiring the ceasing of such conduct, provided the relevant threshold of severity is established.
¶Defamation 3.159 In broad terms, the law of defamation protects a person's reputation. Unlike misuse of
private information, defamation is not concerned with protecting a person from publication of private information but protects a person from the publication of untruths which have the effect of damaging their reputation.
¶3.160 The principles of the law of defamation are mostly contained in the common law with
some overlay of statutory provisions, namely the Defamation Acts 1952 and 1996. The law is currently the subject of debate and likely reform. The Defamation Bill was presented to Parliament on 10 May 2012 and seeks to clarify and reform aspects of the law of defamation.
¶3.161 There are two varieties of each of the torts of libel and slander: personal defamation,
where there are imputations as to the attributes or character of an individual; and business or professional defamation, where the imputation goes to an attribute of an individual, a business, or a charity, and that imputation is as to the way the profession or business is conducted. These varieties are not mutually exclusive: the same words may carry both varieties of imputation.
¶3.162 A person or organisation may bring a claim for defamation where they can be identified
1896from the publication, for example by name or by their title, or where the material would lead people acquainted with the person to believe that he or she was the person referred