By David Hill, Trainee Solicitor
Hourani v Thomson & Ors [2017] EWHC 432 (QB)
A businessman who was the target of a "sustained, highly sophisticated, cynical and calculated" campaign has been awarded £80,000 in damages for defamation and harassment following a 10 day trial in the High Court.
Background
In 2014, Lebanese businessman Issam Hourani was one of three people accused by several individuals of the torture, drugging, beating, sexual assault and murder of TV presenter Anastasiya Novikova. Ms Novikova, who worked for NTK television in Kazakhstan, was found dead in 2004 after falling from the Beirut apartment where she lived. The Lebanese authorities at the time concluded that the likely cause of death was suicide.
The campaign involved two street protests outside Mr Hourani's London home, online publications via websites and social media, and the distribution of stickers in the vicinity of Mr Hourani's home.
The campaign was directed by the fifth defendant, Dr Waller, on the instructions of one or more third parties whose identities were not known. The first two defendants, Mr Thomson and Mr McCarthy, were hired to help Dr Waller. The third defendant was Dr Waller's fiancé who had no involvement in the campaign and the claims against her were accordingly dismissed. The fourth defendant was a company under Dr Waller's control and was used by Dr Waller as the 'alter ego' for the campaign.
The Claimant filed a claim against the Defendants for harassment and defamation.
Judgment
The main issues for Mr Justice Warby to consider were (i) the defamatory meanings of the publications; and (ii) the merits of the affirmative defences relied on by the defendants in respect of both the defamation and harassment claims.
Defamatory meaning and serious harm
Warby J had no difficulty finding that the statements satisfied the common law test of what is defamatory. However, the real issue was whether Mr Hourani had made out the particulardefamatory meanings he was arguing. The complication in this case was the application of the the Jeynes principle - that the article must be read as a whole to determine the meaning of a statement - to the sporadic nature of the online publications. "Article" is taken to mean the whole publication. But what constitutes the "whole publication" where the same person(s) are responsible for various publications across various platforms? The test to be applied, following Dee v Telegraph Media Group Ltd, is whether the statements are "sufficiently closely connected as to be regarded as a single publication". Here, Warby J's approach was to take the assumption that each protest and each online site had its own separate readership. In his judgment, the posts on each individual site relating to the first street protest were sufficiently closely connected with one another to form a single publication - as was also true of the posts relating to the second street protest. By way of example, the protests featured placards with the word "Murderer" next to Mr Hourani's face - while images of these placards formed part of the online publications. Warby J determined that the natural and ordinary meanings of the words and images complained of were indeed the meanings complained of: that Mr Hourani was a murderer and an accomplice of Mr Aliyev in the torture, rape, drugging and false imprisonment of Ms Novikova.
The judge determined that the loss of a business opportunity and the shunning of Mr Hourani by neighbours was sufficient proof of serious harm. Furthermore, the impact on Mr Hourani's family - such as his daughter appearing "scared" of him after seeing the accusations - clearly amounted to serious harm to Mr Hourani's reputation.
Public Interest
Two of the Defendants (Mr Thomson and Mr McCarthy) relied on the public interest defence on the basis that the murder of an individual was in the public interest regardless of whether this took place in a foreign country or whether the perpetrators were also foreign. Warby J was accordingly required to determine (i) whether the Defendants believed that publishing the statement is in the public interest, and (ii) whether any such belief was a reasonable one. Warby J found that neither of the two Defendants had held a belief that publishing the offending statements was in the public interest. The two men - who both played significant roles for financial reward - took no steps other than superficial ones to investigate for themselves the allegations against Mr Hourani. They did not sufficiently direct their minds to the question of whether publication was in the public interest: the defence was dismissed.
Harassment
Warby J held that the courses of conduct carried out by the Defendants was "objectively likely to cause alarm and considerable distress" to Mr Hourani. However, under s 1(3)(c) of the Protection from Harassment Act 1997, a harassment claim will fail if the defendant can establish that in the particular circumstances the pursuit of the course of conduct was reasonable. This requires a delicate balancing of an individual's freedom of speech and another's privacy. Whilst truth is not determinative, it is capable of being a significant factor. Warby J found that the Defendants' allegation of murder in this case was not clear or consistent: the case as to the manner of Ms Novikova's death varied and the role played out by Mr Hourani was never clearly stipulated. The defendants alleged that Mr Hourani "facilitated" the murder of Ms Novikova, but they were unable to explain the causal link implied by this term. As to whether Ms Novikova was murdered at all, the evidence – including a medical report prepared eight years after the death – was unsatisfactory. However, despite the lack of evidence in support of the allegations against Mr Hourani, consideration still needed to be given to the reasonableness of the defendants' conduct.
The conclusions reached in respect of the public interest defence were "enough to lead to the rejection of their defences of reasonableness". Turning to Dr Waller, Warby J firstly rejected his submission that the Court should have regard to particular circumstances that arose after the course of conduct complained of – including Mr Hourani's conduct at trial. He held that the "particular circumstances" referred to in s 1(3)(c) are "those prevailing at the time at which reasonableness is to be assessed".
Dr Waller had a genuine belief that Mr Hourani played a reprehensible role in the death of and other crimes committed against Ms Novikova. He believed that it was in the public interest to publicise them. However, Warby J did not accept that "the public interest in bringing these matters to the attention of the public at large was at the forefront of his thinking". Instead, his main purpose was to carry out the instructions of his client by imposing extreme psychological pressure on Mr Hourani. Serving the public interest was "not instrumental, but incidental to his thinking". Like Mr Thomson and Mr McCarthy, he did not adopt anything like a sufficiently critical approach; he was still unable at the end of the trial to offer any clear case as to how or why Mr Hourani was guilty of Ms Novikova's murder. Dr Waller's role in the campaign was highly unreasonable and an irresponsible misuse of the right to freedom of expression.
Damages
Mr Hourani's claims against the Defendants for both defamation and harassment were successful. Warby J awarded damages of £50,000 for defamation and £30,000 for harassment.
Comment
This case primarily concerned a dubiously motivated campaign set up to give the appearance of a justice-seeking protest. However, Warby J's judgment provides a useful exposition of established defamation and harassment law principles to a campaign conducted through multiple publications.
Individuals and organisations often now use several online platforms concurrently, notably including social media sites. Those whose online output potentially strays towards the libellous should be mindful that the entirety of their output on a certain topic could form a single publication - and therefore be used to give context to particular offending statements. The question is whether the various publications across different sites are "sufficiently closely connected", an evaluation which, as in any case, will depend on the specific circumstances. In this case - although there was no analytical evidence as to crossovers in readership - each post on each individual site that related to the same protest was treated as forming a single publication.
Moreover, in an age of fierce online competition for "clicks", it can be tempting for content providers to publish unverified material. In considering the public interest and reasonableness defences in this case, Warby J examined the level of enquiry taken by the defendants to verify the truth of the allegations against Mr Hourani: each fell way short of what was required. The threshold was particularly high because of the seriousness of the allegations against Mr Hourani, and the likelihood of reputational damage to him. Mr Thomson and Mr McCarthy, in particular, did not believe that publication was in the public interest as they had not directed their minds to the question; they did not care whether the allegations against Mr Hourani were or were not true: their primary concern was financial reward. In an era where "fake news" abounds, those competing for a share of the online space would do well to heed the warning.