Harassment and The Handmaid’s Tale

Published 13 February 2020

In what circumstances can a person obtain an interim injunction against another for harassment and defamation?

The High Court recently revisited this issue in the case of Jagwani v Alles [2019] EWHC 2887 (QB). The claimant, a teacher, made an application for an interim injunction to prevent the defendant, a journalist and campaigner, from sharing allegedly defamatory material about his marriage and subsequent divorce, as well as publishing further allegedly defamatory material about him which he also alleged amounted to harassment.

Mr Justice Murray refused the application. He swiftly found that the claimant was not “likely to establish that publication should not be allowed”, as was required under section 12(3) of the Human Rights Act 1998. A restriction on the right to freedom of expression under article 10 of the European Convention of Human Rights may be justified if it conflicts with another fundamental right, such as the right to respect for private and/or family life under article 8 of the Convention. However, in this case, it did not.

Mr Justice Murray reminded us of “the ultimate balancing test” cited by Lord Steyn in Re S (F) (a child) [2004] UKHL 47 – that neither article takes precedence over the other and that there needs to be an “intense focus” on the importance of the rights being claimed. The justifications for interfering with or restricting each right must also be taken into account and the test of proportionality must be applied.

Furthermore, Mr Justice Murray found that the defendant’s actions fell short of the threshold for harassment under the Protection from Harassment Act 1997, which we were reminded is “To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability”. The defendant only contacted the claimant once by telephone and text message.

The claimant further alleged that the defendant incited protest and violence against him, by quoting from The Handmaid’s Tale by Margaret Atwood in her social media posts. The quote included the following sentence: “One day when we’re ready, we’re coming for you … just wait!” However, Mr Justice Murray was not swayed by the claimant’s interpretation. He described the quote as nothing more than “deliberately heightened speech” for rhetorical effect. Ultimately, the defendant’s actions were not sufficient to sustain criminal liability under the Act, neither were they serious enough to restrict the defendant’s right to freedom of expression.

Jagwani is a reminder of the high bar that claimants must reach when applying for an interim injunction against harassment and defamatory comments. The courts remain unwilling to restrict a party’s right of freedom of expression, unless in the most exceptional of circumstances. Furthermore, when bringing an action for harassment, individuals should remember that it is not enough for a defendant’s conduct to have a severe impact on an individual. In order for the Courts to deem a course of conduct as harassment, that conduct must be serious enough to attain criminal liability.