Associated cost of overstating media harassment claim
In a rare case on alleged harassment by publication in the media, the High Court has dismissed a claim by Carina Trimingham, partner of Chris Huhne MP, against Associated Newspapers for harassment, misuse of private information and, in relation to two photographs, infringement of moral rights.[1] Tellingly, the claimant was found not to be the “purely private figure” that she claimed to be, and the claimant now has to foot the bill for Associated’s significant legal costs.
Overview
Associated, publisher of the Daily Mail, the Mail on Sunday and the Mail Online, published 65 articles over a period of about 15 months which referred to Ms Trimingham’s sexuality and her appearance. Mr Justice Tugendhat did not, however, find that Associated had harassed her within the meaning of the Protection from Harassment Act 1997 (PHA). It was not the case that Associated knew, or that a reasonable person in Associated’s position ought to have known, that the articles amounted to harassment of Ms Trimingham. Her expectations had become limited because of her involvement with Mr Huhne, who was a public figure. The fact that she was Mr Huhne’s press officer and a former journalist meant that it was reasonable for Associated to conclude that Ms Trimingham was of robust character and unlikely to be upset by comments or offensive language.
On the facts, the judge also dismissed complaints that references to her sexuality and her relationship history were a misuse of private information. The articles that Ms Trimingham complained of were not so unreasonable that it was necessary or proportionate to sanction or prohibit the publications in order to protect her rights. In other words, the words used were protected by freedom of expression.
As for moral rights in the photographs, the judge found that the photographs were not in fact “commissioned” within the meaning of section 85 of the Copyright, Designs and Patents Act 1988 (CDPA). The photographs had been taken as a wedding present for Ms Trimingham, and the photographer had no obligation to do so.
Background
Ms Trimingham had worked on Mr Huhne’s campaign to be party leader in 2007. In 2008 Mr Huhne started an affair with her, unknown to Mr Huhne’s wife, Vicky Pryce, or to Ms Trimingham’s civil partner, Julie Bennett. Mr Huhne was re-elected as the Member of Parliament for Eastleigh in Hampshire at the General Election held in May 2010, just over a month before the first of the articles concerned. He became Secretary of State for Energy in the Coalition Government. The relationship between Ms Trimingham and Mr Huhne was subsequently disclosed and widely reported in the press. Mr Huhne separated from his wife, and Ms Trimingham’s relationship with her civil partner also came to an end.
Ms Trimingham brought three claims against Associated: (a) harassment under the PHA; (b) misuse of private information under the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights (enshrining the right to respect for private life); and (c) interference with her moral right to privacy under section 85 of the CDPA in relation to two photographs. She sought damages, including aggravated damages, and an injunction to prevent Associated from harassing her and to restrain further publication by Associated of: (i) information to the effect that she was “ugly” and had a “masculine appearance”; (ii) information that made direct or indirect reference to her sexual orientation; and (iii) photographs of her civil partnership ceremony.
Decision
Harassment
Ms Trimingham claimed that Associated had pursued a course of conduct that amounted to harassment under the PHA, including publication of comments about her personal appearance and sexuality that she found offensive.
Tugendhat J found that Ms Trimingham was not the “purely private figure” that she claimed to be. First, in her professional capacity, she had undertaken to work for one of the leading politicians in the country as his press officer. The public had an interest in knowing whether they could trust Mr Huhne and Ms Trimingham not to deceive them. Secondly, in her private capacity, she had conducted a sexual relationship with Mr Huhne, which he had told her would lead to his leaving his wife. She had done this in conditions of secrecy, which she knew were likely to give rise to a political scandal. The public had an interest in knowing how the personal life of a leading politician, especially a Cabinet Minister, might affect the business of Government. She had chosen to take the risk of being mixed up in a political scandal, which her own conduct had precipitated.
Further, the judge found that none of Associated’s journalist witnesses ought to have known that what they were writing amounted to harassment of Ms Trimingham. The same was true of Associated: a reasonable person in the possession of the same information as Associated, i.e. that Ms Trimingham was a press officer and used to be a journalist, could reasonably consider that she was unlikely to be upset by comments or offensive language and gave “as good as she got”. For example, the evidence showed that when she was a journalist she had herself disclosed information about other people for publication in the newspapers. She was therefore a person who should not reasonably be expected to be distressed when such information was published about her.
Although the judge accepted that Ms Trimingham had suffered distress, he was not persuaded that it had been caused, or that Associated ought to have known that it would be caused, by the course of conduct of which she complained, as opposed to by defamatory (but true) words which were not part of her pleaded claim or by “papping and conduct” by persons other than Associated. The judge found that, while he accepted Ms Trimingham was upset about insulting and offensive language about her appearance, he did not accept that Associated ought to have known that its conduct in relation to that language would sufficiently distressing to be considered oppressive or to amount to harassment. Further, he did not accept that in fact that had been how Ms Trimingham had considered it.
Ms Trimingham had complained of the use of the words “bisexual” and “lesbian” by Associated. The judge considered, however, that they were purely factual words, not normally understood as pejorative by a reasonable person. Associated had expressed hostility towards Ms Trimingham’s conduct in deceiving her civil partner at the same time as Mr Huhne was deceiving his wife, rather than towards her sexuality. A reasonable reader would have understood the words to refer to this, not to refer to Ms Trimingham’s sexual orientation as such.
As for whether, on the facts of the case, Associated’s course of conduct was reasonable, the judge noted that, if an unusual event occurs involving sexual behaviour of a public figure and one of the participants happens to be homosexual, it was not of itself unreasonable for a newspaper to refer to that fact. Nor was it unreasonable to refer to those facts on as many occasions as the substance of the story was repeated in order to explain subsequent events of public interest. And if a journalist was criticising a person for deceitful, unprofessional or immoral behaviour in a sexual and public contest, it was not of itself unreasonable to refer to that person as being homosexual if in fact that person was, and if that person’s sexual conduct was one of the factors giving rise to the newsworthy events.
If Associated’s course of conduct had interfered with Ms Trimingham’s Article 8 rights, then it might have been unreasonable. The judge found, however, that Ms Trimingham’s Article 8 rights had become “very limited” as she was not a purely private figure and she had also been open about her sexuality and her sexual relationships. The judge understood why Ms Trimingham said that she was offended and insulted. Even if, however, the words complained of were offensive or insulting, that would not, of itself, suffice for her to succeed, as it would be a “serious interference with freedom of expression if those wishing to express their own views could be silenced by, or threatened with, claims for harassment based on subjective claims by individuals that they feel offended or insulted”. After all, the test for harassment was objective.
As for the high number of references to Ms Trimingham’s sexuality (65 articles), which Ms Trimingham argued amounted to oppressive taunting, the judge noted that, although Associated might be said to have targeted her by naming her in each article, it had not targeted her in the sense of sending numerous messages, making numerous demands, or following or threatening her. Each time that she was named, the main character in the story was Mr Huhne, and each publication had been prompted by a particular event in Mr Huhne’s public career or life, or some other newsworthy event, such as a party conference. The main target was Mr Huhne. The repetition did not, therefore, have the effect that speech which was otherwise “reasonable” within the meaning of the PHA crossed the line so as to amount to harassment. It was not, therefore, necessary or proportionate to grant an injunction in the terms sought, nor to find a breach of the PHA.
Misuse of private information
The claim here failed at the first hurdle: Ms Trimingham did not have a reasonable expectation of privacy such that her Article 8 rights were engaged. She had not attempted to keep her sexuality private. A civil partnership, like a marriage, was a public event, Tugendhat J said, and her own evidence was that, before the affair with Mr Huhne, she had had relationships with other men and people who knew her knew of her sexuality. The information did not, therefore, attract the necessary level of confidence.
As for the complaint that the articles reduced her to a “crude stereotype” and played on “homophobic prejudice”, Tugendhat J agreed with Associated that the statements disclosed no meaningful information about Ms Trimingham, or no information that was not already disclosed by the reference to her known bisexuality. Further, there was no reasonable expectation of privacy in respect of the conclusion of Ms Trimingham’s relationship with her civil partner. Ms Trimingham’s betrayal of her civil partner was apparent from other parts of the articles, in any event.
The publication of statements in the articles that Ms Trimingham had said that sex with Mr Huhne had been “wild”, “incredible” or “amazing” were, in Tugendhat J’s view, within the range of editorial judgment, given the overall nature and content of the articles.
As for the photographs of Ms Trimingham’s civil partnership ceremony, she had used one of them for her Facebook profile page. Further, in 2008, she had given the photograph to a journalist who had written a story about her work in Brian Paddick’s campaign to be Mayor of London. In these circumstances, the judge held that the subsequent publication by Associated of cropped versions of the photographs disclosed no significant information in which Ms Trimingham had a reasonable expectation of privacy.
Infringement of moral rights under the CDPA
Section 85(1) of the CDPA states that:
“A person who for private and domestic purposes commissions the taking of a photograph or the making of a film 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.”
On the evidence, Tugendhat J found that Ms Trimingham had not commissioned the photographs within the meaning of section 85. For a “commission” there must be an obligation on the part of the photographer to produce the work and an obligation on the part of the commissioner to pay money or money’s worth. The photographs had been taken by a friend as a wedding present. As such, they were taken for money’s worth; but the photographer had retained the copyright and had not undertaken any obligation to give a present or to take the photographs. Ms Trimingham would have had no claim if he had accepted another unexpected commission for the same day and declined to take photographs of her.
Freedom of expression
Although Associated referred to Ms Trimingham’s sexuality in 65 articles over about 15 months, the judge found that it had only done so:
| (a) |
when writing about matters of public interest, namely developments in Mr Huhne’s personal life that were relevant to his public life; and |
| (b) | when Ms Trimingham and her conduct (and other information about her) were within the range of what an editor could in good faith regard as relevant to the story. |
Further, the distress that Ms Trimingham had “undoubtedly suffered” was the result of the publication by Associated of defamatory (but true) information about her, about which she had not made a claim in defamation, and the actions of paparazzi, journalists and publishers for whom Associated was not responsible. The judge confirmed that insulting and offensive speech is protected by the right of freedom of expression. The words complained of were not so unreasonable that it was necessary or proportionate to sanction or prohibit publication.
Evidential issues
The judge was highly critical of Ms Trimingham’s evidence, holding that in “a number of respects” Ms Trimingham was not a “good or reliable witness”. For example:
| (a) |
She had claimed that Associated had “trashed” her civil partnership by publishing the wedding portrait photograph. The judge, however, found that Ms Trimingham’s evidence on this point was “seriously exaggerated” and demonstrated “a lack of objectivity”, given that: (i) Associated was reporting on how she herself had ended her civil partnership, allowing her civil partner to learn about her relationship with Mr Huhne only after many months of deception; and (ii) nobody apart from her could have known that the photograph was taken at the civil partnership ceremony. |
| (b) | She volunteered only the name of The Guardian when asked which papers had bought her stories and, when cross-examined, she claimed to have forgotten the other newspapers, as well as what the stories were about. The judge was not persuaded that she was being candid, noting that she was clearly: “… a person who saw nothing wrong in disclosing to the world at large what she considered to be newsworthy information about the sexual activities of others … Likewise, she saw nothing wrong in disclosing to the newspapers information conveyed to her in or from a private conversation.” |
Comment
At the time of writing, Ms Trimingham has applied for permission to appeal against the High Court’s decision, and the application is listed to be heard by the Court of Appeal between mid-August and late October 2012.
For now, while the decision at first instance will be welcomed by the press, it does not offer a carte blanche to publishers. The case turned decisively on its facts, and the judge acknowledged that repeated publication of offensive or insulting statements about an individual’s appearance could amount to harassment, and that repeated derision of an individual’s sexual orientation in a national newspaper would “almost inevitably” constitute harassment.
In any event, the judgment serves as a cautionary reminder to claimants in harassment and privacy actions not to exaggerate their claims. The court’s doubts about Ms Trimingham’s evidence meant that, where her evidence conflicted with that of Associated, her evidence was rejected. The judge also cited Lord Phillips’ observation that cases of alleged media harassment will require “exceptional circumstances” to justify restraining freedom of speech.
Associate, Michael Simkins LLP
[1] Carina Trimingham v Associated Newspapers Ltd [2012] EWHC 1296.
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