MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
(vi) Where the complaint is of harassment by publication, the claim will usually engage Article 10 of the Convention and, as a result, the Court’s duties under ss.2, 3, 6 and 12 of the Human Rights Act 1998. The PfHA must be interpreted and applied compatibly with the right to freedom of expression. It would be a serious interference with this right if those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that they felt offended or insulted… (vii) In most cases of alleged harassment by speech there is a fundamental tension. s.7(2) PfHA provides that harassment includes ‘ alarming the person or causing the person distress ’. However, Article 10 expressly protects speech that offends, shocks and disturbs. ‘ Freedom only to speak inoffensively is not worth having ’… (viii)Consequently, where Article 10 is engaged, the Court’s assessment of whether the conduct crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the importance of freedom of expression and the need for any restrictions upon the right to be necessary, proportionate and established convincingly. Cases of alleged harassment may also engage the complainant’s Article 8 rights. If that is so, the Court will have to assess the interference with those rights and the justification for it and proportionality… The resolution of any conflict between engaged rights under Article 8 and Article 10 is achieved through the ‘ ultimate balancing test ’ identified in In re S [17] … (ix) The context and manner in which the information is published are all-important… The harassing element of oppression is likely to come more from the manner in which the words are published than their content… (x) The fact that the information is in the public domain does not mean that a person loses the right not to be harassed by the use of that information. There is no principle of law that publishing publicly available information about somebody is incapable of amount to harassment… (xi) Neither is it determinative that the published information is, or is alleged to be, true… ‘ No individual is entitled to impose on any other person an unlimited punishment by public humiliation such as the Defendant has done, and claims the right to do ’… That is not to say that truth or falsity of the information is irrelevant… The truth of the words complained of is likely to be a significant factor in the overall assessment (including any defence advanced under s.1(3)), particularly when considering any application interim injunction… On the other hand, where the allegations are shown to be false, the public interest in preventing publication or imposing remedies after the event will be stronger… The fundamental question is whether the conduct has additional elements of oppression, persistence or unpleasantness which are distinct from the content of the statements; if so, the truth of the statements is not necessarily an answer to a claim in harassment. (xii) Finally, where the alleged harassment is by publication of journalistic material, nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment. Such cases will be rare and exceptional…”
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