The implications of Carina Trimingham's defeat by Associated Newspapers in May 2012
Mr Justice Tugendhat came down on the side of the media in this action for breach of privacy. Here there was an additional element of alleged harassment by Associated – only the second time that alleged media harassment has been the subject of a High Court judgment.
The facts of this case were unusual. Carina Trimingham was a journalist and communications officer and had been working as press officer for Chris Huhne in his election campaign for the 2010 general election. Mr Huhne was married. He retained his seat in the May 2010 election and became a member of the cabinet.
The following month there was blanket press coverage of the fact that Mr Huhne had been having an affair with Carina Trimingham. Associated Newspapers published a series of articles discussing Ms Trimingham and included the fact that she was in a civil partnership with another woman and that hence her affair with Huhne was a deceit on her civil partner.
Her original claim against Associated related to 8 articles in summer 2010 which she suggested were an invasion of privacy because they referred to her sexuality and her private relationships in a way which was stereotyped and denigrating. She then added a claim under the Protection from Harassment Act 1997 in relation to (after various amendments) more than 70 other articles and many more "readers' comments".
The Judge found that there was no harassment: he said that Associated Newspapers' actions in publishing the words about which Ms Trimingham had complained did not warrant any sanction. The Judge ruled that the references to her sexuality, her clothing and appearance were insulting and offensive but that it was not necessary or proportionate to find that there had been "harassment" within the meaning of the Act.
The Judge also found that there was no reasonable expectation of privacy in the information published. He found it a matter of fact that Ms Trimingham was not just a private person. Her right of privacy had been reduced by the nature of her personal and professional involvement with Chris Huhne, and also by disclosures she herself had made in the past in the course of her job. The civil partnership and affair with Mr Huhne meant that she had no reasonable expectation of privacy in the fact that she was bi-sexual. Some additional information which she alleged reduced her to a stereotype, or conveyed other information about sexual matters which she was alleged to have said, were not sufficient to pass the threshold of seriousness necessary for a finding of misuse of private information.
In addition, the articles were in the public interest and information about Ms Trimingham's sexuality was reasonably relevant.
The fact that the claimant had suffered distress was due to the fact that the articles were defamatory of her, but being true she had no cause of action for defamation.
The importance of this case is that it sets a high hurdle for claimants seeking to allege harassment by the media. The test for whether harassment took place is objective one: it is not sufficient that the individual claimant had been offended or insulted or distressed by words written about him or her: it must objectively amount to a course of conduct which constitutes harassment.
The case also highlights the vital importance of previous conduct by privacy complainants. In this instance, the Judge pointed to the fact that Ms Trimingham had disclosed information about others for publication in newspapers in the course of her profession and was therefore "a person not reasonably to be expected to be distressed when such information was published about herself".
Furthermore, the general frankness of witnesses is of course vital: he found that the journalists had provided cogent and convincing evidence whereas the Judge said that he found Ms Trimingham not to be a good or reliable witness and had exhibited a lack of candour in trying to diminish the importance of a election leaflet featuring Mr Huhne's family.
One should remember that much depends in the facts of each case. It would appear that the Judge very much took against Ms Trimingham and that played an important part in the way the balancing act came out in the newspaper's favour.
The Judge did say, in relation to the harassment claim, that the repeated publication of offensive or insulting statements about someone could be harassment under the Protection Against Harassment Act, and that the repeated mocking of someone's sexual orientation "would almost inevitably be so oppressive as to amount to harassment".
An important quote was that the Judge thought journalists, having regard to her background, were entitled to regard Ms Trimingham as a "robust and tough operative who was open about her sexuality and who would not be surprised or unduly distressed by the fact that her sexuality, and the other information complained of, was published about her".
At the end of the day, although complicated by its particular facts, what comes out of this case is a reminder that privacy and harassment legislation contain special protections for freedom of speech and that, in the words of the Judge "insulting and offensive speech is protected by the right of freedom of expression".
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