The High Court recently considered the approach to interpreting a "course of conduct" under the Protection from Harassment Act 1997 and the requirement of "serious harm" under the Defamation Act 2013: Hourani v Thomson and others  EWHC 432 (QB).
This decision provides a vivid example of how concurrent liability can arise in the torts of defamation and harassment in the context of social media campaigning. It also provides instructive guidance on the type of evidence that may be offered to prove publication in this jurisdiction of statements made online by foreign defendants, as well as the type of harm that is considered sufficiently serious to found a defamation claim.
The court also considers the role that the rights to freedom of expression and freedom of assembly (balanced against the right to a private and family life) play in assessing whether a course of conduct amounts to harassment.
Neil Blake and Rebecca Murtha in our disputes team consider the decision further below.
The defendants, who were US-domiciled, were engaged by one or more unknown third parties to orchestrate a public campaign against the claimant, who is resident in London but served as the Kazakh ambassador to Lebanon during the relevant time. The campaign was aimed at painting the claimant as responsible for the 2004 sexual assault and death in Lebanon of a young woman named Anastasiya Novikova.
The defendants (with varying levels of participation) organised two street protests, one outside the claimant's London home and the other near the Lebanese embassy in London. Protesters were in fact hired actors. Banners implying the claimant was a murderer were displayed, and speeches and chants about the claimant's involvement in the death of Ms Novikova were made. Videos of the protests, as well as additional statements, were published on YouTube, Facebook, Twitter and other websites. Stickers implicating the claimant were also distributed around the claimant's neighbourhood and placed in public locations.
The claimant commenced an action against the defendants for defamation and harassment.
The High Court (Warby J) held that the defendants were liable for defamation and harassment, and ordered them to pay damages commensurate with their involvement in aspects of the campaign.
In order to bring a successful claim in libel, a claimant must demonstrate, inter alia, that (a) a statement has been published which falls within the jurisdiction of the court, and that statement (b) has a defamatory meaning, and (c) has caused serious harm to the claimant's reputation.
With respect to (a), the defendants argued that there was no publication within the jurisdiction of the English court as they were resident and carried out their activities in the United States. However, the court found that making the statements to bystanders and neighbours of the claimant at the street protests constituted publication within the court's jurisdiction. It also concluded that the videos and accompanying statements were viewed by internet users in England, and therefore published in this jurisdiction.
With respect to (b), the plain and ordinary meaning of the multitude of statements is that the claimant is a murderer, was involved in the torture and sexual assault of Ms Novikova, and that he is evading justice by hiding in London. These are clearly defamatory.
With respect to (c), it could be inferred that serious harm would result from the allegation that the claimant is a murderer, but in any event the evidence put forward by the claimant demonstrated serious harm to his reputation. This included his being shunned by neighbours, the adverse reaction of his own daughter, and his loss of an opportunity to buy a hotel after the seller cancelled negotiations following the first street protest.
The defendants argued that the statements were published in the public interest, such as to afford them a defence under section 4 of the Defamation Act. While bringing those responsible for the murder of Ms Novikova to justice may be a matter of public interest, the defendants had to show that they held a reasonable belief that a statement was indeed in the public interest. The fact that the defendants were being paid to orchestrate the campaign, and had undertaken little or no research into the truth of the allegations, militated against a finding of reasonable belief, and accordingly the defendants were unable to avail themselves of this defence.
In order to bring a civil claim for harassment under the Protection from Harassment Act, a claimant must demonstrate that a defendant pursued a course of conduct which objectively amounts to harassment of another, and which he or she subjectively knows or ought to know amounts to harassment.
The court found that the campaign, comprised of multiple incidents over a period of months, amounted to a course of conduct. The conduct was of a nature and degree sufficient to cause significant alarm and distress to the claimant so as to amount to harassment. There was evidence that the defendants sought ways to 'get in the face' of the claimant, and 'put the heat on him'. This demonstrated subjective knowledge that the campaign would cause the claimant alarm and distress.
The defendants argued that their course of conduct was for the purpose of preventing and detecting crime or was otherwise reasonable, and therefore could not amount to harassment. The court determined that the protests and publication could not be in aid of preventing a crime, as the crime had already been committed. Even if the relevant defendants had argued that the protests and publicity were aimed at galvanising the authorities into investigating or prosecuting a crime, the defendants would have failed. The protests were fake 'made-for-YouTube' events, not legitimate attempts to lobby the Lebanese government or others. Nor was the conduct reasonable, or of a nature that that should be protected by the rights to freedom of speech or freedom of assembly at the expense of the claimant's right to privacy and family life.