Case Summary and Outcome

The High Court of Justice (Queen’s Bench Division) in England held that a 2014 media and protest campaign to target and brand three individuals as murderers constituted libel and harassment. The case, filed by one of the campaign’s targets, had been brought against individuals who were being paid to run and participate in the campaign after protests with posters with the target’s face and the word “murderer” were held in London and stickers related to the campaign were distributed near his house. The Court held that the campaign was “an irresponsible misuse of the right to freedom of expression” and awarded a total of £80,000 in damages to the target of the campaign. The Court concluded that the “interference with free speech represented by the imposition of liability” was “necessary for, and proportionate to” the protection of the target’s right to respect for private and family life (para. 235).

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Facts

In 2014, Issam Salah Hourani (the claimant in this case), his brother-in-law, Rakhat Aliyev, and his brother, Devincci Hourani became the targets of a campaign which sought to denounce the three men as “murderers, responsible for the torture, drugging, beating and sexual assault of a young woman, Anastasiya Novikova, and her subsequent death, in Beirut [Lebanon], in 2004” (para. 1). Ms. Novikova, a television presenter for NTK television in Kazakhstan, fell to death from her Beirut apartment which was investigated and declared a suicide by the Lebanese authorities. At the behest of her parents, the Kazakh authorities launched an investigation and claims were later brought against Rakhat Aliyev, Issam Salah Hourani, and Devincci Hourani in both countries for alleged involvement in her death but the proceedings were never concluded, and hence the circumstances surrounding her death remained in question.

The individual or individuals – referred to as “the Client” – behind the campaign were not identified, but it became known that an individual, Dr. Waller, was hired for approximately US$500,000 to manage and direct the campaign. Waller in turn hired his fiancee, Ms. Blair, and two other individuals, Messers Thomson and McCarthy, and used a company under his own control, Psybersolutions, to carry out the campaign (para. 2). Thomson, McCarthy, Blair, Psybersolutions and Waller were listed as defendants in this matter.

The campaign involved two street demonstrations in London on June 19, 2014 and November 16 2014 in which paid protesters “held up banners and placards and shouted slogans” (para. 3). The June demonstration was held to mark the 10th anniversary of Novikova’s death, and included a staged candlelit vigil which Waller used for YouTube campaign material (para. 69). The campaign used various social media websites to distribute information about the allegations against Hourani and the other two targets (para. 72). Stickers with “Justice for Novikova” were also distributed near Hourani’s London home, and the social media campaign encouraged people to print their own stickers and posters (para. 73). Notably, the banners demonstrated during the protests had clearly identifiable photos of Hourani and the other targets with the word ‘Murderer’ written on them (para. 70).

In December 2014, Hourani initiated proceedings before the High Court submitting that the campaign against him constituted libel and harassment contrary to the Defamation Act, 2013 and Protection from Harassment Act, 1997 respectively. As Hourani did not know who was behind the campaign, the claims were initially “brought against Persons Unknown” (para. 4) but the identity of the defendants was later revealed and they were added to the case. However, although Thomson, McCarthy, Blair and Psybersolutions were sued for both libel and harassment, Waller was only sued for harassment since he was the last defendant to be identified and the “limitation period for libel had expired” by the time his role in the campaign was revealed (para. 4).

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Decision Overview

Judge Warby, sitting as a single judge, delivered the judgment of the High Court (Queen’s Bench Division). The main issues before the Court were whether the defendants’ conduct constituted defamation, whether they were “harmful enough to be actionable for libel”, whether the acts constituted harassment, and the extent of responsibility each of the defendants bore in respect of the libel and harassment charges (para. 5).

Hourani argued that the allegations of his involvement in the death of Novikova were untrue, and that he was the “victim of a malicious campaign of vilification and harassment” (para. 9). At the end of the trial Hourani sought an additional order to compel Waller to reveal the identity of the individual/s who paid him to undertake the campaign (para. 10).

The defendants argued that the campaign involved the exercise of their rights to freedom of expression and the right to protest as guaranteed by articles 10 and 11 of the European Convention on Human Rights (ECHR).  Thomson and McCarthy pleaded the defence of “public interest” as set out in section 4 of the Defamation Act, 2013 in respect of the libel claims. Section 4(1) states that “[i]t is a defence to an action for defamation for the defendant to show that (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest”. As a defence to the harassment charges all the defendants argued that their conduct did not constitute harassment because the campaign was pursued for “preventing or detecting crimes” or was “reasonable in the particular circumstances” in terms of section 1(3) of the Protection from Harassment Act, 1997. (para. 6).

Warby explained that although there was concern that the U.K. courts did not have jurisdiction because all the defendants were US citizens or residents, “[i]n defamation law the principles concerning publication are clear … [p]ublication of written words or images takes place if, when, and where those words are read” (para. 82). He added, with reference to the U.K. case of King v Lewis [2004] EWCA Civ 1329 that online publication occurs where it is accessed by users (para. 82).

In ascertaining the defendants’ responsibility for the publication, Warby referred to the U.K. cases of Watts v. Times Newspapers Ltd [1997] QB 650, 670 and Bunt v. Tilley [2006] EWHC (QB) 407) and noted that “[l]iability for publication arises from participation in, or authorisation of, the publication complained of” and requires “some knowing and active involvement in the process of publication of the words or message complained of” (para. 94).

In defining “defamatory meaning”, Warby referred to the U.K. case of Thornton v. Telegraph Media Group [2011] 1 WLR 1985 which held that  “a statement is defamatory of a person if it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so” (para. 116). He explained, with reference to the U.K. case of Jeynes v. News Magazines Ltd [2008] EWCA Civ 130 [14] that the meaning of a statement is determined with reference to the meaning “which a reasonable viewer or reader would take” (para. 117). Warby added that the context of the entire website or social media posting is relevant in determining whether the publication was defamatory (para. 118), and held that (notwithstanding the possibility of some cross-over of readership) each separate social media posting constituted a separate publication (para. 120). Warby found that the “natural and ordinary meanings” of the publications in the present case were that Hourani was guilty of murdering Novikova and that he was evading justice in London (para. 121), and held that the publications were defamatory.

Having established the defamatory nature of the publications, Warby noted that section 1 of the Defamation Act requires that harm caused to the reputation of a claimant must be “serious” (para. 122). He held that Hourani had demonstrated that he had suffered serious harm as a result of the publications (para. 125). Warby emphasized that it did not weaken Hourani’s case that he had not called neighbours as witnesses to demonstrate any harm to his reputation and referred to the U.K. case of Sobrinho v. Impresa Publishing SA [2016] EWHC 66 (QB) which had commented on the reluctance of plaintiffs to contact people who may have read the defamatory publication out of a fear of spreading the defamatory statements even further (para. 125).

Warby acknowledged the interaction of the right to freedom of expression with the right to private and family life in this case. He stressed the importance of  the right to freedom of expression with reference to the U.K. case of R v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 and the European Court of Human Rights case of Nilsen v. Norway App. No. 23119/93 (1999), and made specific reference to the U.K. case of Thomas v. News Group Newspapers Ltd [2001] EWCA Civ 1233 [2002] EMLR 4 which had assessed harassment in respect of publication. Warby examined the dangers to freedom of speech inherent in a harassment claim resulting from publication and stressed that the determination of whether publication constituted harassment must be based on an “objective standpoint” (para. 141). He quoted the U.K. case of Trimingham v. Associated Newspapers Ltd [2012] EWHC 1296 (QB) at [267] which had stated that “[i]t 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” (para. 141).

Warby highlighted that the rights to freedom of expression and to freedom of association under articles 10 and 11 of the ECHR are qualified and, in a case such as this, must be balanced against the right to respect for private and family life under article 8 (para. 146). Warby explained that “the resolution of any conflict between Article 8 and Articles 10 and 11 is achieved through the ‘ultimate balancing test’” as set out in the U.K. case of In re S (A Child) [2004] UKHL 47 (para. 146).

Warby concluded that the campaign in the present case was “objectively likely to cause [Hourani] harm and considerable distress” (para. 150) and that it did, in fact, cause “substantial distress” (para. 152). He added that Waller, Thomson and McCarthy either knew or reasonably ought to have known that their conduct would cause Hourani distress (paras. 157 and 163).

Thomson and McCarthy had relied on the defence of publication in the public interest, as set out in section 4 of the Defamation Act, in respect of their libel charges. Warby referred to a judgment he had written in Economou v. de Freitas [2016] EWHC 1853 (QB) [139] where he stressed that, in order to rely on this defence, a defendant must demonstrate that she/he reasonably believed that the publication was in the public interest (para. 167). In respect of the present case, Warby held that neither Thomson nor McCarthy believed that it was in the public interest to mark Hourani out as a “murderer”: he said that “[t]hey were carrying out a job for reward, without addressing their minds to whether or not it was in the public interest, or fair or reasonable to target the Houranis” (para. 169). He added that a “belief will be reasonable for this purpose only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case” (para. 173).

Warby rejected the defendants’ defence to the harassment charge that they were seeking to prevent or detect crime (para. 178). He also rejected the defence that the harassment was reasonable, and referred to the Trimingham case which had held that “the exercise of the freedom of speech should only be found to involve unacceptable harassment if certain stringent conditions are clearly satisfied”, but that one of these conditions is that the rights of another person under article 8 are infringed (para. 185). He held that, as Thomson and McCarthy undertook the campaign simply as a job, they did not believe the libel or harassment were in the public interest and that, accordingly, the defence of reasonableness must fail. He said “[i]t is not reasonable for a person to accept substantial reward for playing a significant role in carrying out another’s instructions to stage a fake, made-for-YouTube demonstration that targets a person with an accusation of murder, without turning their mind to whether this is in the public interest, or making any (or anything other than superficial) investigations into whether the accusation is true” (para. 204). In addition, Warby concluded that Waller, like Thomson and McCarthy was not motivated by any desire to further the public interest when he engaged in the campaign (para. 216), and held that “Dr Waller’s conduct in organising and directing a campaign in which Mr Hourani was publicly and repeatedly vilified as a murderer, and as guilty of other grave crimes, was unreasonable to a very high degree” (para. 235).

In concluding the balance between the defendants’ rights under article 10 and article 11 and Hourani’s right under article 8, Warby held that “there is a pressing social need to interfere with the rights of these defendants under Articles 10 and 11 for the purposes of protecting the specific rights to respect for his private life which Mr Hourani is asserting … [t]here is no pressing need to prioritise these defendants’ Convention rights over Mr Hourani’s rights under Article 8(1)” (para. 204).

Accordingly, Warby held that “Dr Waller was responsible for all aspects of the campaign complained of … Mr Hourani has proved that Dr Waller’s role in organising and directing the campaign amounted to a course of conduct involving publication within this jurisdiction which was oppressive, unreasonable, and harmful enough to amount to harassment” (para. 12.1). In addition, as Warby found that Psybersolutions was Waller’s alter ego, the company was also responsible for libel and harrassment arising out of the entire campaign (para. 12. 4). Warby held that Thomson and McCarthy were responsible for libel and harassment arising out of the conduct of the campaign in which they were directly involved (paras. 12.2 and 12.3), and that Blair was not responsible for any of the conduct (para. 12.5).

Warby used the factors identified in the U.K. case of John v. MGN Ltd [1997] QB 586 to determine the quantum of damages to award to Hourani (para. 236). Taking into account what would be needed to compensate Hourani for the harm he suffered and to vindicate his good name but also the need to ensure that the amount did not interfere with the defendants’ article 10 rights more than was necessary (para 237), Warby ordered Psybersolutions to pay £80,000, Thomson £40,000, McCarthy £65,000 and Waller £30,000 (para. 240). The amounts took into account the level of each defendant’s involvement and that Waller had only be sued for harassment and not libel.

Warby also held that “Mr Hourani should be allowed to pursue a claim against Dr Waller for disclosure of the identities of the Client(s)” (para. 13).

In conclusion, Warby termed the campaign “an irresponsible misuse of the right to freedom of expression” and said that the “interference with free speech represented by the imposition of liability” was “necessary for, and proportionate to, the pursuit of that legitimate aim”(para. 235).

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