Trimingham case is an example of value judgments obscuring legal ones
Carina Trimingham, whose privacy and harassment claim against the publisher of the Daily Mail, Mail on Sunday and Mail Online last week, does not appear to be a particularly sympathetic character. As Mr Justice Tugendhat , the adverse publicity Chris Huhne's press officer faced when their affair was exposed was of her own making; and the court also had to contend with the fact that she had a history of selling stories to the press about other people's sexual conduct.
While lamenting the unwanted intrusion into her own private life following the exposure, in June 2010, of her relationship with the former energy secretary, Trimingham does not appear to have been overly concerned about the impact of the political scandal on a shell-shocked Vicky Pryce, who was married to Huhne for 25 years and with whom he has children.
"She [Pryce] is the story", Trimingham told journalist Andrew Pierce at the Liberal Democrat party conference attended by both women in September 2010, leading him to believe, he told the court, that the former journalist and PR advisor was trying to use her professional skills to focus attention away from herself and onto Huhne's wife.
Trimingham's case says nearly as much about the importance of good and reliable witnesses as it does about the current state of privacy law. Where facts were in dispute, for example whether a photograph taken on the day of her civil partnership ceremony was stolen from the home of her civil partner's sister or given to a journalist, and whether Liberal Democrat Councillors resigned over what they saw as hypocrisy in a general election leaflet about Huhne's family values or were all deselected, the judge did not accept her evidence.
In other instances he doubted Trimingham's candour – he found she diminished the importance of the election leaflet — and he concluded that she "seriously exaggerated and demonstrated a lack of objectivity" when she claimed the Mail "trashed" her civil partnership by publishing photographs taken at the ceremony.
By contrast, Tugendhat found that the evidence given by Pierce and other journalists, including Amanda Platell and deputy editor Jon Steafel, was credible and that mattered in the first English trial, of a claim against a media organisation under the . Trimingham complained about repeated references to her as "bisexual" and "lesbian" and insults about her appearance - including comments that she wore doc martens and had spiky hair.
The legislation, more frequently used in criminal prosecutions for stalking, required the court to decide three things. First, whether a "course of conduct" – in this case a series of 65 articles published over 15 months – amounted to harassment; second, whether knew or ought to have known it amounted to harassment; and third, whether the publisher's conduct in repeatedly publishing information about Trimingham's sexuality was reasonable.
The claim did not succeed, but editors should not necessarily be complacent about an outcome that was almost entirely dependent on the characters and events involved. The judge said the repetition of offensive or insulting statements about someone's appearance in the media could be harassment under the legislation and the repeated mocking of someone's sexual orientation in a national newspaper "would almost inevitably be so oppressive as to amount harassment."
However, at the same time as leaving open the possibility of future, successful, claims against media organisations, the judge also referred to remarks made by Lord Phillips, in an against The Sun, that such cases will need to involve "exceptional circumstances" to justify the restrictions on freedom of speech.
Trimingham's related privacy claims also failed. She didn't complain about the disclosure of her relationship with Huhne but claimed (among other things) the fact of her civil partnership was a private matter and references to her sexual orientation and relationships were misuses of private information under the Human Rights Act (HRA) and article 8 of the European Convention on Human Rights.
The court found she had no reasonable expectation of privacy in relation to any of these matters. Civil partnership is a public status and her sexuality was something she had freely disclosed about herself in the past. The images she complained about — a portrait taken before the civil partnership ceremony (which she used for her Facebook profile until the scandal broke) and a picture of her at the wedding party — were cropped and disclosed nothing that wasn't already known about her, the judge said.
Trimingham's case is significant because of the special protections given to speech under the HRA and article 10 of the Convention. She gave evidence that information about her in the dozens of articles published by Associated Newspapers was so offensive and insulting that the publications were oppressive, but the court held that she had not proved harassment within the meaning of the statute.
Fatal to Trimingham's harassment claim was her inability to distinguish between the causes of her distress. The court found that she was upset, not just by repetition of statements about her sexuality and appearance, but also by the inclusion in the articles of defamatory and true information about the extra-marital affair. She was also distressed by the conduct of journalists and photographers from other newspapers, including The People, which broke the original story.
The judge considered Trimingham's status as public or private figure to be highly relevant. As Huhne's "spin doctor", Trimingham was not a "purely private" individual, he said. She'd had an affair with him during the May 2010 general election campaign in which a leaflet about his family values was distributed and since she knew the relationship was likely to become public she took the risk of becoming embroiled in a political scandal.
Her privacy rights had become "very limited" by dint of the fact that she was not a purely private figure and because she had disclosed information about her sexuality in the past.
The judge found that the words "lesbian" and "bisexual", in the 65 articles Trimingham complained, about were not pejorative and were always relevant. He said the repetition of these references to her sexuality was reasonable (within the meaning of the harassment legislation) and not oppressive - a journalistic device to remind readers of the backstory and more often than not used in articles on subjects of public interest, which were mainly about Huhne. Trimingham's complaint about references to her appearance was even weaker because those comments occurred less frequently in the series.
Journalists were entitled to regard Trimingham as "as a robust and tough operator 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". The judge continued, "She had sold many stories to the press and was willing to use information about other people's lives for her own benefit".
This legal decision is, inevitably perhaps, infused with moral judgments – the original stories were about adultery, a leaflet about family values was said to have deceived the electorate, there were allegations of homophobia (vehemently denied) and that journalists abused their power, the claimant's own professional conduct was called into a question, her credibility was found wanting, and she had herself peddled tittle tattle to newspapers.
In cases with this sort of factual matrix, value judgments tend to obscure the legal issues and the result is that while the judge's reasons for finding against Trimingham are clear, the conclusions to be drawn for future harassment cases against the media are not.
Are all press officers who work for politicians now to be seen as as not "purely private" individuals with "very limited" privacy rights? Are tabloid journalists, by this reasoning, to be regarded as public figures? Are harassment claims brought by individuals who journalists consider to be tough operators doomed to failure? Do people who claim to be victims of press harassment have to come to court with clean hands? And finally, what sort of "exceptional circumstances" need to exist before a media organisation's conduct is found to be so oppressive and unreasonable that it amounts to harassment?
"Insulting and offensive speech is protected by the right of freedom of expression," said Tugendhat in concluding that Associated Newspapers had not harassed the press officer within the meaning of the Act. "What Ms Trimingham complains of is not so unreasonable that it is necessary and proportionate to sanction and prohibit such publications in order to protect [her rights]." In a Trimingham said the judgment was "confused" and she intends to appeal.