Sicri v Associated Newspapers Ltd (Rev 1)

On the evening of 22 May 2017, the singer Ariana Grande gave a concert at the Manchester Arena. As the event came to a close a suicide bomber, Salman Abedi, detonated an improvised explosive device in the foyer. He murdered 22 and injured more than 800 people, many of them children and young people. This was the worst terrorist atrocity in the UK for over a decade. It inevitably led to an urgent countrywide investigation, led by the Greater Manchester Police (“GMP”).

At about 04:40 on 29 May 2017, armed police arrested the claimant, Alaedeen Sicri, at his home in Shoreham-by-Sea, West Sussex, on suspicion of offences contrary to the Terrorism Act. Within minutes, the GMP had issued a press release stating that a 23year-old man had been arrested in Shoreham “in connection with the Manchester Arena attack”. In line with standard practice, the police did not name the claimant. This action arises from the fact that the defendant did.

From 06:45 onwards, the defendant published on its MailOnline website an article (“the Article”), reporting on the arrest of the claimant. Initially, no identifying information was provided. But details were added as the day went on. A version, published at 12:47, identified the arrested man, accurately, as a “trainee Libyan pilot”, gave a version of his first name, identified the location of his home, and gave other details capable of leading to his identification by some. Versions, published from 18:00, gave his name as Alaeedeen Zakry, an alternative spelling, and told readers (again accurately) that he “runs an online marketplace for Libyans from his Sussex home”. From 18:21, the Article gave the conventional spelling of his name, and a number of additional details. By this time, he was identifiable to the world at large.

The reason for the claimant’s arrest was that records showed he had received a telephone call from Salman Abedi. The claimant told police that Abedi was a complete stranger, who had called out of the blue seeking to exchange some Libyan currency, a transaction the claimant declined. The police, having spent several days investigating and questioning the claimant, were satisfied that no further action was appropriate. None of this is in dispute. On 3 June 2017, the claimant was released without charge.

The defendant did not report the claimant’s release. The Article remained online unamended until February 2018, when it was taken down following receipt of a letter of claim from the claimant’s solicitors. The claims advanced at that time were not conceded and, on 21 December 2018, the claimant brought this action claiming damages for breach of confidence and misuse of private information. His claim includes claims for aggravated damages - to compensate for increased hurt to feelings - and for special damages, to compensate for financial loss.

Misuse of private information is part of the “confidentiality genus”, but breach of confidence and misuse of private information are separate and distinct wrongs. At this trial, however, it has been common ground that it is unnecessary to examine their differences. The case can be decided by reference to the latter tort alone, the contours of which have been shaped by Articles 8 and 10 of the Convention.

This case has come to trial less than six months after the decision of the Court of Appeal in ZXC v Bloomberg LP [2020] EWCA Civ 611 [2020] 3 WLR 838 (“ZXC CA”). The Court dismissed an appeal from the decision of Nicklin J, [2019] EWHC 970 (QB) [2019] EMLR 20 (“ZXC1”), that the publication of information which identified the claimant as the subject of a criminal investigation represented a misuse of private information. In ZXC CA at [82] the Court of Appeal held that, in law:

“... those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion.”

ZXC was not the first case in which the Court reached such a conclusion. Mann J had done so earlier in Sir Cliff Richard’s claim, Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch) [2019] Ch 169. The issue had been extensively discussed in earlier cases. But ZXC was the first such case to reach an appellate court. ZXC is of course binding on me.

The main issues that arise for decision are as follows:

Issues (1) and (2) are not necessarily binary questions. The defendant’s case is that the answers may depend, at least in part, on how knowledge of the story evolved in the claimant’s locality and the media on and after 29 May 2017. Issue 3(a) and 3(c), if they arise, call for consideration of (i) an alleged inconsistency between what was said about damages for reputational harm by Mann J in Richard v BBC and by Nicklin J in ZXC1; (ii) whether the “rule” in Dingle v Associated Newspapers Ltd [1964] AC 371 applies in the tort of misuse of private information generally, and/or on the facts of this case.

There is no connection between the issues in this case and those being looked at by Sir John Saunders in the Manchester Arena Inquiry. At the time of this trial, that Inquiry, established on 22 October 2019, was hearing evidence relating to the Arena Complex and the Security Arrangements. Its terms of reference have no overlap with the issues in this case.

Thanks to the parties’ efficiency, and the efforts made to reduce the scope of the issues, the trial lasted three days rather than the original estimate of five. The facts are substantially uncontroversial. The main areas of factual investigation at trial were the extent to which the Information was public or general knowledge in Shoreham-by-Sea and beyond, other than by virtue of the Article; the defendant’s editorial decisionmaking processes; and issues relating to the claimant’s claims for damages.

After opening statements by Counsel for each party, the claimant gave evidence and was cross-examined by Mr White QC, for the defendant. The claimant adduced evidence from five other witnesses. One of these was his solicitor, Tamsin Allen, who gave evidence relating to damages and was cross-examined by Mr White. Four other witnesses gave evidence that was relevant wholly or mainly to damages. They were Nezar El-Harushi, an aircraft engineer; Jacqueline Verrall and Dec Mooney, directors of English Language Homestays Limited (“ELH”), for which the claimant worked in 2017; and Mohamed Elazoumi, an employee of Conduent, another company for which the claimant worked after his work with ELH came to an end. The statements of these witnesses were unchallenged, and were read, rather than adduced live on oath or affirmation. All of this was accomplished within the first day of the trial.

The defendant’s evidence was adduced on day two. Four editorial staff of MailOnline, who were involved with the Article, were called as witnesses to describe how they dealt with the story and why. In descending order of seniority, they were Marianna Partasides, (UK News Editor), Amanda Williams (now Executive Editor, but an Associate Editor at the time), Tom Savage (UK Night News Editor), and Mark Duell (Senior News Reporter). All four gave evidence live. Ms Partasides was crossexamined by Mr Tomlinson QC, the others by Ms Mansoori. The defendants also called evidence from Barry Keevins and Jaya Narain, two freelance journalists who were engaged by the defendant on 29 May 2017 to carry out enquiries. Mr Keevins gave evidence in court and Mr Narain by video-link. Both were cross-examined by Mr Tomlinson.

After a break for Counsel to prepare their submissions, I read and heard closing argument on what would have been day five, but ended up as day three of the trial.

The claimant was born in 1994, in Tripoli, Libya. His parents, a consultant gynaecologist and an English teacher, still live there. The claimant has been in the United Kingdom since he came here in late 2011, aged 18, to study. The name in which he brings this action is the official transliteration of the Arabic, used in official UK documents. Other transliterations have been used including Ala Zakry, which is a name he uses on social media.

In September 2012, the claimant enrolled as a full-time student on a course at an aviation school, based at Shoreham Airport, in Sussex. He graduated with an Air Transport Pilot Licence in July 2014. The fees of some £75,000 were paid by his parents. While studying, he lodged with local families, initially Jackie Verrall and family, and later John and Jenny Crump. After graduating, he rented a flat above a parade of shops in Brunswick Road, in the centre of Shoreham. He worked for Mrs Verrall at ELH, which provided accommodation and English lessons to foreign students during the summer months. On a student visa, he was only able to do up to 20 hours a week of work in this role. He could not work in aviation in the United Kingdom. His evidence is that he was looking for jobs in aviation abroad.

The claimant had a business called “Hasoub Alafaq”, supplying Libyans with products from international sources, which were not available from Libya. He would receive funds in Libyan dinars from customers in Libya, use his UK bank account to purchase goods in the UK (from Amazon or eBay), and send the goods to Libya. The foreign exchange transactions were carried out using a Facebook page called “Pounds for the Libyan community in the UK”. As the claimant describes it, “someone gives pounds to you in the UK and you or your representative gives Dinars to their representative of family member in Libya”, or the other way round. The claimant receives money from his parents via a similar method: they pay Dinars to someone in Libya, whose friend or relative in England pays the equivalent in Pounds to the claimant here. The claimant put his name and mobile number onto the page as someone looking to exchange money in Libya, so that he could be paid in the UK when someone in Libya ordered goods.

The claimant describes himself as “a very sociable person” who was “living a very normal life for a young man”. He is a Muslim, who goes to the Mosque occasionally. But he had no interest in radical preachers or views that would be considered extreme in the UK. He was working hard and wanted to be successful. But he would drink and go out and “do things which are disapproved of in my religion.” He had a group of friends in Brighton who were recent graduates or still at University, with whom he used to go out at weekends to restaurants or sometimes clubs or bars.

Developments in the political and security situation in Libya led the claimant to apply for asylum. On 20 or 21 May 2017, the claimant learned from his solicitor that his application for asylum had been approved by the Home Office.

Shortly afterwards, he received a call from someone whom he later discovered was

The attack on the Manchester Arena, on 22 May 2017, led to widespread fear and concern. A huge national and international investigation and manhunt was immediately launched by the police and security services. The express assumption was that the bomber had acted as part of a wider terrorist network, which might strike again. The UK terror threat level was raised to its highest level, “critical” (meaning a further attack was expected imminently). This was the first time in nearly 10 years that the threat level had been assessed as being so high. The Queen made a public statement. Campaigning in the General Election was suspended. Troops were deployed to guard Government buildings in London. Operation Temperer was activated for the first time, allowing soldiers to reinforce police in protecting other parts of the country.

Over the days that followed:

The claimant told me, and I accept, that he found the Manchester bombing horrific. As well as thinking about the families of those who died, he was concerned – when he heard the bomber was Libyan - about how people would think about the Libyan community. He did not recognise Abedi’s name when he read it in media reports.

On the morning of 29 May 2017, he was in bed in his second-floor bedroom when – at about 04.40 - police officers broke through the communal door to the street and then through his flat door on the first floor. He awoke to find the officers standing in front of him. They arrested him and took him from the flat to a police van, still wearing his pyjamas. Other police vehicles were there. As they drove off, it was just getting light. He could see nobody there except for the police.

The claimant was taken to a police station and interviewed. The claimant appreciated, from the arrest and questions, that he was suspected of involvement in the bombing. Over the course of 24 hours, he was interviewed three times, each interview lasting for approximately 5 hours. In the evening of 29 May 2017, the police were authorised to detain him for a further seven days. Over the following four days, the claimant was interviewed further.

He told the police that he did not know Abedi, or anything about the attack other than what had been broadcast and reported in the media. The police asked about his studies, his work and daily life. They had a record of Abedi’s call: its date, time and duration. They asked the claimant about that. He did not know he had been in contact with the bomber until the police told him.

All of this is the unchallenged evidence of the claimant, which I accept.

At 04:22 on 29 May 2017, the GMP released by email the following statement (“the Press Release”) and posted the substance of it on the GMP Twitter account shortly thereafter:

“Subject: Man arrested in Shoreham by Sea in connection with Manchester Arena attack

This morning (Monday 29 May 2017) officers investigating the attack on the Manchester Arena have arrested a 23-year-old man in Shoreham-by-Sea, Sussex on suspicion on (sic) offences contrary to the terrorism act.

A scene remains in place at the address where the man was arrested.

As it stands 16 people in total have been arrested in connection with the investigation, of which two people have since been released without charge.

A total of 14 men remain in custody for questioning.”

Barry Keevins, a very experienced freelance journalist based in Brighton, learned of the arrest from a contact, shortly before 06.00. At 06:10 he emailed Ms Partasides, Mr

Mr Keevins knew the street name, but on arrival there was no police presence. He identified the claimant’s house by noticing people hanging out of upstairs windows. He filed his first copy at 07:27, reporting that police were searching an address in Shoreham. His aim was to find out what had happened and who was involved. Over the hours that followed, he used his experience to try to do this, with limited success.

Between 07:30 and 08:00, Mr Keevins spoke to two residents of the claimant’s building, Charlie Foss and Sam Schiffer. Mr Foss said he had been woken by screaming and shouting, and witnessed the arrest in the early hours. Mr Schiffer found police at his home when he returned from a night shift. These two were able to describe the claimant, but did not know his name. Between 08:00 and 08:22, Mr Keevins was fortunate enough to encounter John Crump, walking his dog past the building. Mr Crump told him the arrested man had previously lodged with the Crumps and gave his name as “Anadin”, which Mr Keevins filed in copy. Before 9am, he spoke to another neighbour Anna Read, who could not provide a name. The police arrived at the address at around that time and later issued a statement, but they did not provide the name or identifying details of the arrested man.

Mr Keevins spoke to Mrs Mainda, but she did not have the name. He went to Shoreham Airport but, it being a Bank Holiday, there was nobody there. Returning to the “scene”, he spoke to a number of locals but when he filed copy at 13:32 he did not know the claimant’s name. He knew, or at least believed, that Mrs Crump had given the name to the Mirror, but he did not get to speak to her until later, and first filed copy containing the name at 14:27. He was then able to, as he did, search online. By 16:17, Amanda Williams was still concerned to know how many people had confirmed the identity. Mr Keevins was only able to identify the Crumps.

MailOnline relied on another experienced freelance journalist based in Brighton, Jaya Narain. He trades as, or in, a news agency under the name South Coast News, providing “exclusive stories” to national newspapers. He first heard of a “dawn raid” at Shoreham from a contact who called him at around 08.00 on 29 May 2017. By 08:30, he had seen the GMP Press Release, and decided to go to Shoreham. Before he got there, he called Ms Partasides and, at 09:25, she confirmed his retainer to cover the arrest for MailOnline. Mr Narain arrived at about 10:25. On arrival, he spoke to the journalist for the local paper, the Argus, and a man called Stephen Courtney, but he did not get a name from them.

Mr Narain spoke to “more and more” residents, many of whom knew the claimant by sight or by name, but for the most part he was only given the name “Ali”. By 11:47, however, Mr Narain had made a bit more progress. He sent copy to Mark Duell, the senior reporter covering the story for MailOnline, reporting that the arrested man had been

“named locally as Aladine (spelling guess) …”

This appears to have been based on interviews with Mr Chaudhury, a local restaurant owner, and Ms Mainda, a hairdresser. Mr Narain, like Mr Keevins, visited Shoreham Airport but without success. Further efforts to put a name to the arrested man were unsuccessful, and Mr Narain reported as much to Mr Duell at 14:34. He got the name “Aladine” from a local resident, Amy Rhodes, and filed this at 15:15. By around 17:00 he had spoken to the Crumps, who confirmed the claimant’s identity and the spelling of his full, official name. At around 17:10, Mr Narain filed copy with this information and quotations from the Crumps.

The first iteration of the Article appeared at 06:45 on 29 May 2017, under the headline “Man, 23, is 16^th suspect to be arrested over Manchester terror attack as armed police swoop on an affluent seaside town 263 miles away in Sussex”. It was attributed to

“Paddy Dinham and Paul Thompson and Scott Campbell for MailOnline.” This told the reader rather less than the Press Release, as it described but did not name the town where the arrest took place. No complaint is made of that version.

The Article was modified on about 44 occasions thereafter. Many of the changes involved the addition or changing of photographs, and most of them are immaterial. From 06:47, the town was named, and the defendant published the first of a number of photos of the town. From 07:02 the place of arrest was identified as the High Street, Shoreham, and there was an image of the High Street. From 11:16 onwards, details about the claimant began to emerge. It was said that he was “believed to have been arrested in a flat above a parade of shops in the town centre”, and a photograph was published of police in the street outside the claimant’s flat.

The claimant’s claim relates to versions of the Article published at and after 12:47 on 29 May 2017. It is from that time onwards that he alleges that the Information was wrongfully disclosed to the public by the defendant. It is sufficient to set out the words of the version published at 12:47, and to identify the key changes made in later versions.

The Particulars of Claim attached a version of the Article that first appeared much later:

The majority of the evidence given by the defendant’s witnesses at trial concerned (a) the editorial processes that led to the defendant’s reporting taking the form it did, and (b) the witnesses’ views about what policy or legal principle should be followed in relation to the naming of suspects. I shall return to both aspects of this evidence. The second aspect is almost entirely irrelevant and inadmissible. The relevance of the first aspect also requires consideration, but it does call for findings of fact about matters that are in dispute.

The claimant’s arrest was extensively reported elsewhere in the media. The existence, timing and content of such reports is relevant to issues (1)(c), (2) and (3)(d) and (e) above. Some of the reports were in the Arabic media. I shall come back to that. For the moment I focus on publications in England and Wales.

The claimant’s legal team prepared a schedule, entitled “Local and National Articles published on 29 May 2017 which referred to the arrest of the Claimant”. I accept its factual content, which is essentially undisputed. Both sides have submitted comments on this schedule, which I have considered. Ten key points emerge:

The Guardian article did not go unnoticed by the MailOnline team. At 17:29, within 20 minutes of its appearance, Mr Keevins emailed Amanda Williams and Ms Partasides saying “The Guardian have named him”. By about 6pm Mr Keevins had found the claimant’s Facebook page, sent Ms Partasides a link to the profile, and written that he thought it was “pretty certain” they had correctly identified the arrested man. It was after this that the defendant published the claimant’s full name.

The claimant was released on 3 June 2017. Officers came to his cell and said they had decided to take no further action and to release him. They said they had found no evidence of his being involved with the bombing at all. They had looked carefully into him and found no reason for him to be held or further investigated. They warned him that the media knew all about him, and that his arrest and picture had been on the TV and in the papers. He had known none of this so “this was a huge shock to me.” He had believed his family did not know about the arrest. He had planned to tell them he had been ill or in hospital, to avoid them panicking.

The claimant was advised by the police to stay away from his home for the first two weeks. They said there would be people waiting outside his door as “it was likely they would know I was being released”. The claimant asked the police to drive him to a friend’s house, which they did. This account is unchallenged.

The police were not far wrong. Mr Narain learned of the claimant’s release – he could not remember how, and decided to “doorstep” the claimant. At 10pm on 4 June 2017, he emailed Ms Partasides in these terms:

“I know this is absolutely not among your top 100 priorities at the mo but Alaedeen Zakry was released from custody yesterday and is due to return to Shoreham. I’m doing to go round to knock him tomorrow morning to see what he has to say about why police held him for seven days. Let me know if you need cover.”

Asked by Mr Tomlinson what he meant by this, Mr Narain said “Generally, the release of someone from custody is not as important as the arrest”. When she was asked about this, Ms Partasides could not explain Mr Narain’s remark that this was not among her “100 top priorities”, but she said “we don’t as a rule” report a release from custody. It was put to her that the public was being misled because “you tell them about the arrest but you don’t tell them when people have been released”. Her answer was “That is generally, yes.” Pressed further, she said she could not remember her exact decisionmaking process then. She suggested “there are other contextual reasons that go into whether or not we should run that story as well.” She did not clearly identify any such reasons, and could not remember why the article was not updated.

After his release he learned from his friend Mohammed Elazoumi “how my name had been published everywhere, that there had been worldwide publicity and my family knew, and how everyone has been talking about it”. At Mr Elazoumi’s suggestion he did an internet search, finding that his name was “everywhere as a suspected terrorist”. His evidence is that “All the people who knew me in the UK and my family in Libya were speaking and updating each other about the situation”.

He spoke to his parents on the day of his release. They were desperately worried. They did not understand the police and court system in the UK. Both were very distressed, which upset the claimant in turn. He learned later than his mother had suffered medical consequences from the news, suffering PTSD and being hospitalised for two days. His father was suspended from work on 5 June 2017, and his employment with the two clinics he worked at was later terminated.

Over the first few days after his release, the claimant looked briefly at the press coverage. He “saw that all the major newspapers were reporting that I had been arrested on suspicion of terrorist offences and that they had published my name … and address, then my Facebook photograph.” He found it sickening and was distressed to see that it was also being published around the whole world, including the Arabic speaking world.

The claimant describes further aspects of the impact on him, which include fear for his safety, hostile messages on social media, and damage to the business of Hasoub Alafaq. He moved to Bournemouth, in an attempt to reduce the effects of the adverse publicity. In June 2017, he learned that ELH had terminated his work with them. The letter he received, from Ms Mooney, made clear that the reason was the negative publicity and media coverage following the claimant’s arrest. The evidence of Mr Mooney and Ms Verrall confirms this, and is not in dispute.

The claimant felt very low, went to a GP in February 2018, and was prescribed a wellknown anti-depressant, but – he says - without much effect. The claimant says that he was unable to work for the rest of 2018. In late 2018, he did set up a new company, to carry out export work, and obtained a job with a company called Conduent with whom he worked for 5 or 6 months. He left to work for L3 Harris, an aviation training company. But in November 2019 he left to help out a family member in Turkey. He has not worked since.

The claimant went to solicitors, Bindmans LLP. On 8 January 2018, they sent the defendant a detailed 14-page letter of claim on his behalf, headed “Proposed defamation, Privacy and Data Protection Claim”. It contained complaints about the Article, a shorter version published in hard copy on 30 May 2017, and a separate article published on 31 May 2017.

The Article was the primary focus, and the misuse claim was explained first. The letter complained that the identification of the claimant as the individual arrested was “an act of irresponsible journalism” which infringed his reasonable expectation of privacy, with no possible public interest justification. The claim in defamation was explained next.

The defendant’s solicitors, RPC, replied in detail on 18 February 2018. In relation to the misuse claim, it was denied that the claimant had a reasonable expectation of privacy in the Information; it was “entirely unreasonable”, they said, to expect information about the arrest to remain private when there had been “a lengthy and highly visible police operation around his home” in connection with a major recent terrorist incident. Alternatively, it was said, publication was justified in the public interest. Two main points were made: “the public is … entitled to know who has been arrested in the course of an investigation into a very serious terrorist incident” and that:

“there is a legitimate public interest in transparency in police investigations into such incidents and proper public concern in seeing that the police are making progress.”

Although both parties’ cases have been elaborated, and presented in more detail and with greater subtlety and sophistication at this trial, the main battle lines remain broadly as drawn by this exchange of correspondence.

It is relevant to note the defendant’s response to the defamation claim. This was (1) to dispute the alleged meaning, contending that the article meant only that there were reasonable grounds to investigate the claimant’s possible involvement with the bomber, (2) to maintain that this meaning was true, as the claimant had spoken with Abedi “only

The Claim Form was issued, and served with Particulars of Claim, on 21 December 2018. This was some 19 months after the publication complained of, and thus after the expiry of the primary limitation period for any defamation claim, which is 1 year from first publication (Limitation Act 1980, s 4A; Defamation Act 2013, s 8). The claims were the ones before me now: claims in misuse and breach of confidence in respect of the Article.

It is convenient to note here some features of the statements of case in respect of misuse:

There was, as I have indicated, no defamation claim, but in support of the claim for damages, this was said in paragraph 14(6) of the Particulars of Claim:

“The manner and scale of the publication the Article has caused serious and substantial damage to the Claimant’s reputation. The publication of the fact that the Claimant had been arrested in connection with a terrorist attack led to many people believing that the Claimant had been involved or that there were strong grounds to suspect that he had been involved. The Claimant is concerned that this allegation has gained wide currency and will be repeated thus causing serious damage to his relationships and his prospects of obtaining future employment.”

Paragraph 16(6) of the Defence took issue with the claimant’s case on meaning, asserting that the Article “merely reported the fact of the claimant’s arrest in the context of ongoing police inquiries to determine whether the bomber had any relevant associates” and that the “overwhelming impression conveyed” was that the claimant was “... unlikely to be implicated in an Islamic terrorist attack”. The defendant denied, in any event, that the claimant was entitled to use this action to recover damages for any reputational harm caused by the Article. Having threatened to sue in defamation, but chosen not to pursue that complaint:

“… he should not be permitted to use the present claim for misuse of private information in order to evade the thresholds and restraints which moderate a claimant’s entitlement to recover compensation for damage to reputation in a defamation claim and which serve to ensure that the law draws a proper balance between the right to reputation under Article 8 and the right to freedom of expression under Article 10.”

By now, this is well-known and uncontroversial. Carrying out the duties imposed by Parliament in ss 2, 3, 6 and 12 of the Human Rights Act 1998 (“HRA”), the courts have developed the law under the influence of Articles 8 (privacy) and 10 (freedom of expression) of the European Convention on Human Rights. The essential legal principles that have emerged can conveniently be taken from ZXC CA, where they were - as so often nowadays - largely agreed. Simon LJ, giving the leading judgment, stated the law as follows:

“40.

Liability for misuse of information is determined by applying a two-stage test….

…

42.

… stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest … Stage one

43.

At this stage, there must be an objective assessment of what a reasonable person of ordinary sensibilities would feel if he or she were placed in the same position as the claimant and faced with the same publicity.

44.

As Lord Hope of Craighead expressed it in Campbell v. MGN Ltd … at [99]:

The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. …

45.

Before what has been described as the ‘threat to the personal autonomy’ of an individual is protected, it must attain a certain level of seriousness …. Once this threshold of seriousness is passed, the enquiry is broad and may involve a number of circumstances, … I have enumerated these circumstances for convenience:

… the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include (1) the attributes of the claimant, (2) the nature of the activity in which the claimant was engaged, (3) the place at which it was happening, (4) the nature and purpose of the intrusion, (5) the absence of consent and whether it was known or could be inferred, (6) the effect on the claimant and (7) the circumstances in which and the purposes for which the information came into the hands of the publisher. 46. If there is no ‘reasonable expectation of privacy’ or ‘legitimate expectation of protection’ (the tests being synonymous) in relation to the matter of complaint, there is no relevant interference with the personal autonomy of the individual and article 8.1 is not engaged, …. If there is such an expectation, it is for a defendant to justify the interference with the claimant’s privacy at stage 2 of the enquiry ….

47.

If the information, or similar information, about the individual is in the public domain, it is a matter of fact and degree as to whether that individual can have a reasonable expectation of privacy which the courts should protect.

48.

However, the protection may be lost if the information is in the public domain, …

…

Stage two The law

103.

At this point the second question arises: whether in all the circumstances the interests of the owner of the private information must yield to the right of freedom of expression conferred on the publisher by article 10? The fact that this enquiry is commonly referred to as ‘the balancing exercise’ illustrates that this is primarily a matter for assessment by the trial judge.

104.

In striking the balance, the following principles apply.

105.

First, although article 8 and article 10 contain important rights, both are qualified and neither has precedence. Where their values are in conflict, it is necessary to bring a close focus on the comparative importance of the rights being claimed in the particular case; to take into account the justifications relied on for interfering with or restricting each right; and to apply a proportionality test, in what is sometimes referred to as ‘the ultimate balance’ …

106.

Second, the decisive factor at stage two is an assessment of the contribution which the publication of the relevant information would make to a debate of general interest …

107.

Third, the court must have in mind the observations of the

ECtHR in Axel Springer v. Germany [2012] EMLR 15 at [79] …

108.

The Court must not allow itself to be drawn into confining the important rights of the press under article 10, so that it ceases to be the public watchdog of freedoms in a democratic society and becomes the muzzled lapdog of private interests.

109.

Fourth, it will be necessary to weigh in the balance the factors identified by the ECtHR, in the Axel Springer case, at [89] and following:

(1)

contribution to a debate of general interest …;

(2)

how well-known is the person concerned and what is the subject of the report;

(3)

the prior conduct of the person concerned;

(4)

the method of obtaining the information and its veracity; and

(5)

the severity of the sanction imposed: the proportionality of the interference with the exercise of the freedom of expression.”

I have omitted most of the internal citations. Besides Axel Springer, these passages refer to ten well-known cases in this field: decisions of the House of Lords, European Court of Human Rights, Court of Appeal and Supreme Court. In date order they are Campbell v MGN Ltd [2004] UKHL 22 [2004] 2 AC 457 (“Campbell HL”), Von Hannover v Germany (2005) 40 EHRR 1 [2004] EMLR 21, In re S (a Child) (Identification:

Some of the above points deserve emphasis or elaboration in the context of the present case.

Stage 1: reasonable expectation of privacy

Stage 2: the balancing process

In re S and other authorities emphasise the need to pay close attention to the specific rights being claimed in the individual case. This is known as the “intense focus”. As Sir Mark Potter P memorably put it, the balancing test is “not a mechanical exercise to be decided upon the basis of rival generalities”: Re W (Children) (Identification: Restrictions on Publication) [2005] EWHC 1564 (Fam) [2006] 1 FLR 1 [53], later adopted in Clayton v Clayton [2006] EWCA Civ 878 [2006] Fam 83 [58].

Accordingly, the “decisive factor” identified in the authorities is an assessment of the extent to which publication of the relevant information makes a contribution to a debate of general interest: see ZXC CA [106] above (adopting the same formulation as Nicklin J in ZCX 1 [110(vii)]) (my emphasis). This process requires the identification of one or more matters of general interest, debate about which might be assisted by the publication of the particular matter, the disclosure of which is in issue.

For that purpose, it is necessary to have regard to the article or publication as a whole, to see the disputed information in its proper context. This is a point on which authority is hardly necessary. Context is always important; and cases concerning media publications invariably require the contested material to be viewed in its context. But authority, in the present context, is to be found in the decision of the Grand Chamber in Couderc v France (2015) 40 BHRC 436 [102], [105-106], [115]. The Court decided that in order to determine whether the article was on a subject matter of public interest it was “necessary to assess the publication as a whole”.

This is not the same process as deciding whether there is a debate on the subject in question, or whether the disclosure of the information at issue makes a contribution to debate on such a matter. I do not accept Mr White’s contention that Couderc is authority for the proposition that all that is required is for the publication as a whole to make a contribution to a debate of general interest. This is an unappealing submission. It clearly does not reflect the state of domestic law: see the passage I have cited from ZXC CA. A broad-brush principle such as that contended for by the defendant would be at odds with the “intense focus”. And it would tend to produce illogical and unjust outcomes, in which the propriety of disclosing specific private information would be assessed, and might be deemed justifiable, by reference to the public interest in the publication of other, separate and broader considerations. I do not accept this analysis of the Grand Chamber decision. The legal context is different: in the passages relied on, the Grand Chamber was addressing the “initial essential criterion” identified in the Axel Springer criteria (see ZXC CA [109(1)], above). The language used does not support the defendant’s position. And the phraseology derives from von Hannover (no 1) [63], [76] and the earlier cases cited ibid at [60], where the focus was on the specific facts, in their context (in von Hannover, “the published photos and accompanying commentaries” [63]).

A number of points are clear law.

The phrase does not seem to have been explored in any detail in the Strasbourg jurisprudence, but the role and responsibilities of the media are addressed in domestic law by s 12 of the HRA (“Freedom of expression”). The section applies if, as here, “a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression”. Section 12(4) provides that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)

the extent to which—

(i)

the material has, or is about to, become available to the public; or

(ii)

it is, or would be, in the public interest for the material to be published;

(b)

any relevant privacy code.”

The law of misuse of private information would require the Court to take account of the factors specified in s 12(4)(a) in any event: public domain and the public interest have always been recognised as potentially weighty factors. But in the absence of s 12(4)(b), the law would not necessarily require attention to be paid to a “relevant privacy code”. Parliament has, however, required the Court to have regard to such a code. The term is undefined, but it is common ground that it includes the Editors’ Code of Practice (“the

The Code is described in its Preamble in this way:

“The Code – including this preamble and the public interest exceptions below – sets the framework for the highest professional standards that members of the press subscribing to the Independent Press Standards Organisation have undertaken to maintain. It is the cornerstone of the system of voluntary selfregulation to which they have made a binding contractual commitment. It balances both the rights of the individual and the public’s right to know.

To achieve that balance, it is essential that an agreed Code be honoured not only to the letter, but in the full spirit. It should be interpreted neither so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it infringes the fundamental right to freedom of expression – such as to inform, to be partisan, to challenge, shock, be satirical and to entertain – or prevents publication in the public interest.”

The relevant provisions were, at the time of publication, in these terms:

“2.

*Privacy

i)

Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii)

Editors will be expected to justify intrusions into any individual’s private life without consent. Account will be taken of the complainant’s own public disclosures of information.

iii)

It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

…

The public interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.”

The Code set out a non-exhaustive list of purposes or functions that are in the public interest:

“1.

The public interest includes, but is not confined to:

i.

Detecting or exposing crime, or the threat of crime, or serious impropriety. ii. Protecting public health or safety.

iii.

Protecting the public from being misled by an action or statement of an individual or organisation. iv. Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

v.

Disclosing a miscarriage of justice.

vi.

Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

vii.

Disclosing concealment, or likely concealment, of any of the above.

2.

There is a public interest in freedom of expression itself.”

Next, the Code indicated how IPSO would approach a determination on the public

Surprisingly, perhaps, there is little authority on the impact of the Code in the context of HRA, s 12. The issue arose in Douglas v Hello! Ltd (No 1) [2001] QB 967 and was touched on by Tugendhat J in Terry v Persons Unknown [2010] EWHC 119 (QB) [2010] EMLR 400. In Douglas, the Court of Appeal was shown the relevant provisions of the then Editors’ Code, and considered them to be important. Brooke LJ decided the appeal by reference to those provisions, saying this at [94]:

“It appears to me that the existence of these statutory provisions, coupled with the current wording of the relevant privacy code, mean that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in Clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. A newspaper which flouts Section 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by Article 10(2) considerations of privacy.”

At [136], Sedley LJ agreed with this analysis, whilst observing that (as is now wellestablished) the requirement in s 12 to have “particular” regard to factors specified in the section does not give any of those matters pre-eminence. In Terry at [70-73], Tugendhat J identified the Code as one of several matters relevant to what he called “an uncertainty in the law of misuse of private information … [as] to the extent to which, if at all, the belief of a person threatening to make a publication in the media is relevant on the issue of public interest.”

The rationale for the general rule, that an individual has a reasonable expectation of privacy in respect of information that they have come under suspicion by the state, is clear: disclosure of such information is likely to have a seriously harmful impact on the person’s reputation, and thus their private life. This is clear from ZXC CA [82], and from a number of earlier judicial observations cited by the Court in its review of the authorities: see, in particular, [58-61].

The notion that information about official suspicion engages an individual’s Article 8 rights, because of its reputational impact, appears to me to have been firmly established at the highest level over a decade ago.

Recognition of the reputational harm that could result from publicity for the fact of official suspicion, and concern about such harm, developed as the decade wore on. Some of the developments were traced by Lords Kerr and Wilson in their joint judgment in Khuja v Times Newspapers Ltd [2017] UKSC 49 [2019] AC 161 [49-51]. As they noted, the case of Chris Jefferies aroused considerable concern. In late 2010, Mr Jefferies was arrested on suspicion of the murder of Joanna Yeates in Bristol. He was wholly innocent. But in the meantime, he faced extensive media coverage of a prejudicial kind. Some of this was found, in July 2011, to be in contempt of court: see Attorney General v MGN Ltd [2011] EWHC 2074 (Admin) [2012] 1WLR 2408. The press coverage was described by Sir Brian Leveson, in his report of November 2012, as “a protracted campaign of vilification” (Part F, Chapter 1, para 3.25). Sir Brian’s recommendation was that, save in exceptional and clearly defined circumstances, the police should not release the names or identifying details of those who are arrested or suspected of a crime (Part G, Chapter 3, para 2.39). A joint paper dated 4 March 2013, submitted on behalf of the senior judiciary by Treacy LJ and Tugendhat J in response to a Law Commission Consultation, endorsed that recommendation after writing of the “irremediable damage” pre-charge publicity could cause.

By May 2013, as noted in ZXC CA [78], the College of Policing had issued Guidance on Relations with the Media which contained (at para 3.5.2) the following passage, reflecting the developments just mentioned:

“save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of crime should not be released by police forces to the press or public. Such circumstances include a threat to life, the prevention or detection of crime or a matter of public interest and confidence . . .”

On 14 August 2014, there was a notorious and well-publicised instance of widespread publicity following the release, contrary to this Guidance, of information about a police search conducted at the home of Sir Cliff Richard. The South Yorkshire Police gave advance warning to the BBC, who gave prominent coverage to the matter. Sir Cliff sued the Chief Constable and the BBC for misuse of private information. Developments over the following three years supported his claim. They were summarised by Mann J in para [234] of his judgment after trial as follows:

“The question of whether the existence of a police investigation into a subject is something in relation to which the subject has a reasonable expectation of privacy … has been the subject of judicial assumption and concession in other cases. In Hannon v News Group Newspapers Ltd [2015] EMLR 1 it was held to be arguable; it was not necessary to decide it. In PNM v Times Newspapers Ltd [2015] 1 Cr App R 1, para 37 Sharp LJ acknowledged “a growing recognition that as a matter of public policy the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances”, but she did not actually decide the point. In ERY v Associated Newspapers Ltd [2017] EMLR 9, para 65 Nicol J said that there was a reasonable expectation of privacy in the information that a person was being investigated by the police, but he did so on the back of a concession that the fact that that person had been interviewed under caution attracted a reasonable expectation.”

Three points about ERY may be noted: (i) The judgment of Nicol J was handed down on 24 November 2016; (ii) the defendant which made the concession in ERY is the defendant in the present case; (iii) what Nicol J said at [65], having recorded the defendant’s concession, was this:

“If the Claimant has a reasonable expectation of privacy in the fact that he has been interviewed under caution, I struggle to see why he does not also have a reasonable expectation of privacy in the information that he is being investigated by the police.”

On 19 May 2017, Sir Cliff Richard’s claim against the Chief Constable of South Yorkshire Police was compromised: the Chief Constable accepted liability, apologised, made a statement in open court accepting liability, paid Sir Cliff damages of £400,000,

On 24 May 2017, the College of Policing Guidance was re-issued in the following updated wording:

“Respecting suspects’ rights to privacy

Suspects should not be identified to the media (by disclosing names or other identifying information) prior to point of charge except where justified by clear circumstances, e.g. a threat to life, the prevention or detection of crime or a matter of public interest and confidence

…

Naming on arrest

Police will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate policing purpose to do so. This position is in accordance with recommendations and findings of the Leveson Inquiry (part 1), the Information Commissioner and the Home Affairs Select Committee.

…

This approach recognises that, in cases where the police name those who are arrested, there is a risk of unfair damage to the reputations of those persons, particularly if they are never charged.”

On 29 May 2017, the Article of which the claimant complains was published.

On 19 July 2017, the Supreme Court gave judgment in Khuja (on appeal from PNM v Times Newspapers Ltd). The claimant/appellant was one of several men arrested in the course of a police investigation into sexual crimes. He was never charged, but others were prosecuted. Mr Khuja was named at the trial, but protected by a reporting restriction order. He brought proceedings in the High Court seeking an injunction to maintain the anonymity conferred by the trial judge. The Supreme Court upheld the lower courts’ refusal of such an injunction, holding that on the facts Mr Khuja did not enjoy a reasonable expectation of privacy. But again the Court recognised that the impact which publication would have on the private and family life of the appellant was such that his Article 8 rights were engaged: see, for instance [34(2)] (Lord Sumption).

Since then, a general rule in favour of pre-charge anonymity for suspects has been affirmed in the High Court by Mann J in Richard (18 July 2018) and Nicklin J in ZXC1 (17 April 2019), and confirmed by the Court of Appeal decision in ZXC (15 May 2020). In ZXC CA the Court made clear that whilst the College of Policing Guidance is not law, its content is a factor that may be taken into account when deciding whether a reasonable expectation of privacy existed. Simon LJ went on at [84] to hold that the reasonable expectation is not in general dependent on the type of crime being investigated or the public characteristics of the suspect, because “To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information”. That last observation may have been intended to reflect the fact that for 25 years data protection law has classified personal data relating to “the … alleged commission by [the data subject] of any offence” as “sensitive personal data” or, “special category” personal data, the processing of which requires additional justification: see the Data Protection Act (“DPA”) 1998, s 2(g) (implementing Article 8(5) of Directive 95/46/EC) and DPA 2018 s 11(2)(a).

In all three of these decisions, the Court has made clear that there may be exceptions to the general rule, which stands “not as an invariable or unqualified right to privacy during an investigation but as the legitimate starting point”: see Richard [251], ZXC1 [124], ZXC CA [81] (the source of these words). Factors that might defeat the legitimate expectation were identified in ZXC. They included “the public nature of the activity under consideration (rioting for example or, Mr White’s example, electoral fraud)” (ZXC CA [84]), a decision by the police to release the suspect’s name, or the conduct of a bank robber holding customers and employees hostage in a televised three-day siege (ZXC1 [124], approved ZXC CA [85]). When referring to the public nature of the activity Simon LJ clearly had in mind the decisions of the Supreme Court in Kinloch v HM Advocate [2012] UKSC 62 [2013] 2 AC 93 and In re JR38, to both of which his judgment refers. In Kinloch, the Court held that the conduct of a person who carries a bag of criminal monies in a public place, open to public view, is “not an aspect of his private life that he was entitled to keep private”. It was an occasion “when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy.” See [19-21], Lord Hope. In re JR38, the Court held that taking part in a street riot was not an activity that constituted an aspect of private life that engaged the protection of Article 8, although it concerned a child. This approach appears consistent with data protection law, which permits the processing of sensitive personal data where the data have been “manifestly made public” by the data subject: see the discussion in NT1 v Google LLC [2018] EWHC 799 [2019] QB 344 [110-113].

Put another way, the question is whether the general rule applies in the circumstances of this case. In my judgment, it does. There are good reasons in this case to adhere to the normal starting point. The case does not feature anything close to any of the factors I have just identified. It does have a component which was not discussed in detail in any of the cases cited: the defendant was not the only one to identify the claimant; others published the same or similar information about him on the same day. But in my judgment that cannot be said to defeat or even significantly to undermine the claimant’s legitimate expectation that MailOnline would not publish his identity as a suspect.

I start with the Murray criteria. A review of their application to this case shows that the factors that support the view that this claimant had a reasonable expectation of privacy are strong, and the countervailing factors are relatively weak. It is convenient to address the criteria in reverse order. (7): The defendant acquired the identifying details in pursuit of the legitimate aim of reporting to the public on the conduct of a major police investigation; and it did so as a result of lawful investigative activities by freelance journalists whom it retained, and observation of what others were reporting. (6): But

The defendant’s case relies on what are largely, though not exclusively, public domain arguments. In opening, Mr White made much of what were said to be the circumstances on the ground in Shoreham-by-Sea on 29 May 2017, at and after the time of the claimant’s arrest. He submitted that the arrest took place as part of a “high-profile and publicly visible operation”, in which the police took no steps to disguise what they were doing or to protect the claimant’s identity. It was witnessed, he said, by individuals who lived in the surrounding area and “quickly became a topic of discussion and interest” locally, becoming “general knowledge within the… area”. The defendant’s editorial staff sought to make similar points in their written evidence. Mr Duell said that

“intrinsic to my reporting was my belief that someone arrested in a high-profile police operation in the middle of a small town would stand little expectation of privacy given the speed at which a story like this would spread around local residents.” Ms Partasides’ evidence was that by 6pm she “knew” that Messrs Keevins and Narain had “spoken to numerous local residents … who had confirmed the identity of the individual arrested”, and that this contributed to her view “that the claimant’s identity as the individual arrested was circulating in the public domain”.

This line of defence was not borne out by the evidence. As I have noted, the arrest itself was in a private place, and went almost unnoticed given the time of day. The only witness appears to have been Mr Foss, who could not name the claimant. The case is quite distinct on its facts from Axel Springer, on which Mr White relied. In that case (at [100]) the Court attached some importance to the public nature of an arrest. But this was a public figure arrested in a tent at the Munich beer festival. That fact was considered significant in the balancing exercise; it was not said to deprive the arrested man of any Article 8 rights. Moreover, the public interest identified by the Grand Chamber was limited to the arrest, and “did not extend to the description and characterisation of the offence” (possession of cocaine, of which he was later convicted).

For similar reasons, Mr White’s reliance on Hannon v News Group seems to me misplaced. He points to paragraph [101], where Mann J remarked on a “potentially key distinction” between the cases of the two claimants. Ms Hannon was a passenger on an aircraft, who was arrested in public, for conduct which took place in a public place, in the passenger compartment, in the presence of a number of others. In contrast, her coclaimant Mr Dufour was a pilot, arrested after a breathalyser test, “in the privacy of the aircraft cockpit”, after which he “left discreetly in an unmarked police car”. Not only are these provisional, obiter, observations; it seems to me that the circumstances of the claimant’s arrest are closer to those of Mr Dufour, of which Mann J said, “There was nothing public about what happened to Mr Dufour”.

There was certainly highly visible police activity outside the claimant’s flat, later on 29 May 2017 and during the search. But the claimant was long gone, and the police did nothing else that would tend to identify the claimant as the object of their suspicion. The evidence made clear that, so far from this being general knowledge, there were few in the locality who had made the link. Under cross-examination, it became clear that Mr Keevins spent at least 6½ hours on the scene, vigorously investigating, before he was able to establish the claimant’s identity. He got lucky by encountering Mr Crump, which eventually led to the identification. Otherwise, he spoke to a handful of people - none of whom could tell him the claimant’s name - and made several failed attempts to obtain information from other sources. Mr Narain, who arrived on the scene at 10:25, was also energetic but similarly unable to confirm the claimant’s full name until 18.00. The overall effect of the evidence is that the claimant was known locally to some, but not by many; few knew as much as his first name; even his nearest neighbours could not name him to the media when asked.

In any event, there is clearly a distinction to be drawn between a situation in which facts are known to a few locals, and the public disclosure of those facts on what (as Ms Partasides accepted) is “a very successful website … with about 15.6 million unique browsers per day and 200 million daily page impressions”. The point is made in a number of authorities, some of them cited at [64(3)] above, but perhaps never better than by Eady J in CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) [24]:

“It is fairly obvious that wall-to-wall excoriation in national newspapers, whether tabloid or broadsheet, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment.”

It may accordingly be too much for a person arrested at his home to expect his neighbours to stay silent, and not to gossip amongst themselves about what they have witnessed, and yet entirely reasonable for that same person to expect that a media publisher will refrain from reporting his identity as a suspect online, in permanent form, to tens of millions of strangers.

It is further argued by Mr White that there was a high degree of media interest that was “entirely predictable”, and that the defendant obtained information about the arrest and the claimant’s identity by lawful and proper means, including speaking to members of

A separate and distinct strand of the defendant’s argument involved reliance on third party publication in the media. Mr White submitted that “significant information about the claimant and his arrest” was placed in the public domain throughout the course of the day, “including online and via other local and national media outlets.” By 18.00, it was said, the claimant’s “full name had also already been published by at least one other major national media organisation and was therefore readily accessible to internet users”. This was a reference to the Guardian article of 17:09. Understandably, given the way the evidence came out, Mr White’s closing submissions focused on this aspect of the case.

To the extent that this argument relies on local media reports, it again fails to distinguish appropriately between segments of the public. Moreover, as the analysis at [42] above shows, the local media did hardly anything to identify the claimant prior to 18:59. Reliance on national media publication may have greater weight. But the defendant’s 12:47 version of the Article provided MailOnline readers with a name and two other items of identifying information that had not been published anywhere before. Within the hour, The Times, The Daily Telegraph and The Independent had published the other two items of information. I accept Mr Tomlinson’s submission that, on the balance of probabilities, the key items of information in the Telegraph article were taken from MailOnline, and in any case, none of these publishers gave a name. On the evidence, nobody but the defendant had given the arrested man a name before 17:09.

I accept the defendant’s contention that the Guardian’s identification of the claimant, as Ala Zakry, was independent of anything done by MailOnline. But Mr White overstates the position when he submits that this publication had “profound implications” for the claimant’s reasonable expectation of privacy in the fact of his arrest. This case is not brought against the Guardian. But it must follow from what I have said so far that, in my judgment, the claimant had a reasonable expectation that the Guardian would not publish his identity as a suspect either. That expectation was not fulfilled. But it does not follow that the claimant could no longer have a reasonable expectation that the defendant would refrain from doing the same thing.

The Guardian article represented mass media publication online, which does mean the information was generally accessible. But a person’s privacy rights are not defeated by the mere fact that information is accessible. It is trite law that accessibility is not the same as actual knowledge. Granted, the fact the information was there to be found means that it could be located by using a search engine and appropriate search terms. But there is no evidence about what actually happened in that respect, and I cannot guess at the answer. There is evidence about the readership of MailOnline, which is enormous. And it is common knowledge that the readership of the Guardian is considerably lower than, and has minimal overlap with, that of MailOnline. So, the fact that information was published by the Guardian does not establish that it was known to the world at large, or even to any readers of MailOnline. I agree that the analysis of the defendant’s conduct, from 17:09 onwards, must take account of what had been already done by the Guardian, but I do not consider the Guardian article brought an end to the claimant’s otherwise reasonable expectation that the defendant would not publish the Information. There was still ample scope for MailOnline to engage in additional, objectionable intrusion.

This is a simplified version of the issue. As is common ground, stage 2 calls for a dual, or parallel analysis. On the one hand is the question posed above. Put another way: was the curtailment of the claimant’s rights that resulted from his identification as a terror suspect justified by some “sufficient, general public interest”? On the other hand, is the question of whether the claimant’s privacy interest is weighty enough to override the right of the defendant to impart, and the rights of the public to receive, information without interference. At the heart of each balancing process is the question of what is “necessary in a democratic society”, as explained in the human rights jurisprudence. The principles are well-known. I summarised them recently, in Scottow v Crown Prosecution Service [2020] EWHC 3421 (Admin) [35]. In short, an interference with a Convention right can be justified only if it pursues a legitimate aim and is convincingly shown to be justified by, and proportionate to, a “pressing social need”.

The relevant legitimate aims are exhaustively listed in Articles 8(2) and 10(2) respectively. One aim identified in Article 10(2), that may justify restricting what is said about someone at or after the time of his arrest, is “maintaining the impartiality of the judiciary”. Once a person has been arrested, proceedings are “active” for the purposes of the Contempt of Court Act 1981, and a publisher is strictly liable for anything that gives rise to a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced. AG v Jefferies illustrates the point. But that is not a matter that has been debated before me. In this case, the relevant aims are “the protection of the rights and freedoms of others”, mentioned in paragraph (2) of each Article.

The defendant’s case is that the claimant’s rights were already “substantially curtailed” by the local and national publicity that was given to his identity by others, and clearly outweighed by the “substantial public interest” in the publication of the fruits of its investigations. I do not accept the first part of this equation, for reasons that largely mirror those I have already given when dealing with stage 1.

One line of argument advanced by Mr White was to the effect that the process of arrest is subject to the common law open justice principle. That is how it was put in closing. The point was put even more widely in the written opening submissions, as follows:

“It is submitted that just as the open justice principle is based in part on the need for the media to be able to enter any courtroom in order to act as the eyes and ears of the public, so also must the media be able to attend, investigate and report on any local event of public importance as the eyes and ears of the public. In relation to the open justice principle this point was explained by Lord Judge CJ in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 218 at [38]: ‘The public must be able to enter any court to see that justice is being done in that court … In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens.’ The same rationale requires the media to be free to investigate and report on visible local events of interest to the public.”

In fairness, this was only rather faintly pressed in Counsel’s oral submissions, and then in the more restricted version I have mentioned; but I should make clear that I regard it as entirely misconceived. With respect, the argument is confused, and the analogy is without foundation. Court proceedings are, as a rule, open to the public and reportable. But it is impossible to draw any meaningful analogy between what takes place in court and “visible local events of interest to the public”. The rationale for the principle identified by Lord Judge CJ is clear: the Court is exercising the judicial power of the state, determining rights and obligations; its workings need to be transparent and open to scrutiny and criticism. That specific and hallowed rationale plainly cannot be transposed wholesale to “any local event of public importance”. In general, as already noted, there is a clear distinction between the ability and right of the media to attend, watch, listen, and investigate, and its right to report what it finds out. The fact that things can be found out does not mean they can always be reported. Nor is there any presumption or general rule in favour of a right to report things that happen in public. A much more nuanced approach is required.

The narrower version of the argument must also be rejected. Although an arrest also involves the exercise of state power, it is an executive act of a provisional nature, entirely different in character from a civil or criminal trial or other court proceeding. It is clear from the authorities that different rules apply: see CPR 39.2, the Master of the Rolls’ Practice Guidance [2012] 1 WLR 1003 at 9-14, Mohamed, Khuja, NT1 v Google llc [166(2) to (3)], Duchess of Sussex v Associated Newspapers Ltd (No 2) [2020] EWHC 2160 (Ch) [36(1)], [55-57] and R v Wright [2020] EMLR 3 [39]. These show that, (1) as a rule, legal proceedings are held in public; hearings in private are the exception, and require specific justification; (2) the starting point is that the names of the parties and witnesses are made public; and (3) where information is disclosed in legal proceedings held in public, the starting point is that a person will not enjoy a reasonable expectation of privacy in respect of it. ZXC CA establishes that, as a matter of English law, the starting point in relation to information identifying a person under arrest is the opposite. Where the arrest is public, that could weaken or even destroy any reasonable expectation of privacy; but it would not supply or support a public interest or free speech argument of the kind advanced by the defendant.

The public interest, identified by the defendant, is the “interest of the public in being informed about the progress of a high-profile criminal investigation into a major terrorist attack”. That is an extremely broad formulation, to which many exceptions can easily be identified. Would it justify a police officer tipping off journalists about who was being interviewed, and what they had said? And self-evidently, this formulation does not address the core question of why it was in the interest of the public to know the claimant’s identity.

The chief factors, specific to this case, which are identified by the defendant as contributing to the public interest in knowing that information can be listed: (i) the nature and importance of the investigation that followed the bombing; (ii) the acute public concern about the attack; (iii) the fact that the claimant’s arrest had taken place over 250 miles away from the scene of the bombing, which is said to represent “an important and ostensibly alarming shift in focus”; (iv) the consequent public interest in the media investigating further and reporting on “the nature and potential significance of the police investigation in Shoreham-by-Sea”; (v) the importance of names as a way of ensuring reader engagement; (vi) the fact that – it is said – “disembodied coverage

Mr White makes four further points about the decision to name the claimant:

The defendant has not explained how this metaphor could apply to the facts of this case. Several of the defendant’s witnesses were keen to make clear how objectionable they would think it, if the press were confined to reporting what the police thought fit to disclose. But the police are not “private interests”, nor have the police or anybody else suggested that their decisions bind or “muzzle” the press. Nor, on the other hand, has it been submitted that MailOnline was acting in this case as a bloodhound, sniffing out misconduct, or as a watchdog, guarding the public interest against some wrongdoing by a public authority. In my judgment, this case can and should be resolved by reference to its particular facts, without further reference to dogs.

But I should first address some points of principle relating to the other three topics I have listed.

Mr White’s submission that the balancing process should take account of the state of the authorities at the time of publication cannot assist the defendant. As a matter of fact, the state of the authorities made it clear, then, that the publication of information identifying a suspect was liable to be held a misuse of private information: see [76-80] above. The long-standing policy of the police, and the reasons for that policy, grounded in considerations of law, were in the public domain at all material times. The Chief Constable had conceded Sir Cliff Richard’s claim only days before the publication of the Article. And as a matter of principle, the law was then as now declared in ZXC CA; the common law does not change.

It is for the Court to determine whether a particular topic or subject is or is not a matter of public or general interest, and whether an individual publication relates to such a subject. In this case, there is no difficulty about that. The general subject-matter of the Manchester bombing, the subsequent police investigation, and its progress were plainly matters of public or general interest, on which it was not only legitimate, but the function of the media to report. The Article related to those matters. But it is obvious that the fact that an article is on, or about, a matter of public interest cannot be enough to justify the inclusion in that article of any item of private information that has some relationship with the subject-matter. These are conceptually separate questions: see s 4 of the Defamation Act 2013, Rudd v Bridle [82]. Nor can publication be justified by the mere fact that the information has been lawfully obtained. All depends on the specifics of the case.

It is, in my judgment, clear law that the task of striking the appropriate balance between competing rights in any individual case is also one for the Court, and not the media. That was the conclusion drawn by Eady J in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) [2008] EMLR 679 [135], having taken account of what was said in Reynolds and Jameel. No previous or subsequent authority has held otherwise. It has not been submitted, nor do I consider it to be the law, that the task of identifying and weighing the privacy rights of an individual is one to be left to the media. Those are not areas for editorial discretion. They are matters of law, or mixed law and fact, in respect of which the media have no specialist expertise. Nor is it for the media to determine what are the facts of a given situation.

Properly understood, the authorities on the topic of editorial latitude are concerned with factors on the other side of the balancing exercise: the importance of the free speech rights at stake, and – in particular - the appropriate way to give practical effect to those rights. That is why the Strasbourg authorities refer to “tone” and to the “methods of objective and balanced reporting”, the “technique of reporting” and the “form in which” information and ideas are conveyed”: see Jersild [31]. Similarly, in Fressoz & Roire [54] the Court stated that article 10 leaves it for journalists “to determine what details it is necessary to reproduce to ensure credibility”. (The emphases here are mine). The broad proposition that can be drawn from the authorities is that in assessing whether, in the particular circumstances of the case, the imperatives of free speech are such that the privacy rights which the Court has identified must be overridden, the Court should show an appropriate degree of deference to the professional expertise and judgment of the publisher. As Lord Bingham put it in Jameel [33], in the context of Reynolds privilege:

“Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.”

As this reference to “weight” makes clear, the Court does not abdicate or delegate its function. The task is objective, as I have stated; and an overall conclusion on the weight to be given to free speech will be influenced by factors which are for the Court to assess, and not for editorial evaluation. For example, the need to take account of plurality of opinion (discussed, for instance, in Terry [104], and Ferdinand v MGN Ltd [2011] EWHC 2454 (QB) [64]) which may count in favour of, or against, disclosure. The degree of latitude or weight to be given to editorial decision-making will depend on the circumstances, including the subject-matter, the nature of the information at stake, the context in which the defendant wishes to use it, and the extent to which the individual defendant can be seen to have relevant knowledge and expertise.

The defendant relies on what Lord Hope said in Re BBC [25]:

“The BBC are entitled to say that the question whether D’s identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge…. Judges are not newspaper editors … the issue as to where the balance is to be struck between the competing rights must be approached on that basis”.

But these, and other observations relied on by the defendant, must be understood in their context. When viewed in that way, I think it clear that they are consistent with my analysis above, and do not support Mr White’s argument that it is, as a matter of law, purely a matter for editorial judgment whether to “illustrate” an article with a name so as to engage readers’ attention.

In each of In re S, Re British Broadcasting Corporation, and In re Guardian News and Media Ltd, the context in which the issue of identification arose was that the media wished to name individuals, who were parties to legal proceedings held in public, in reports on or about those proceedings. In the first two cases, the individual whose anonymity was in question was the defendant in criminal proceedings. In the third, the individuals were terror suspects challenging asset freezing orders. In each case, the Court undertook a scrupulous balancing exercise and reached its own conclusion. In each case, that balancing exercise was being undertaken prospectively: the general nature of what the media wished to publish was known, but no draft article or script or programme was before the Court. In each case, the Court acknowledged the norm is party identification; recognised the importance of freedom of speech and debate in relation to legal proceedings; and identified a risk that anonymity would harm these public interests: see In Re S [34] (Lord Steyn), Re BBC [26-27] (Lord Hope) In re Guardian [52], [64] (Lord Rodger). Hence, the Court (1) refused to prohibit the press from identifying, in reports of a murder trial, the defendant mother who had killed her son; (2) discharged an order that would have prevented the BBC from naming – in a documentary programme inspired by the removal of the “double jeopardy” rule - a man

The specific context in which Lord Hope used the words on which the defendant relies is also to be noted. They were part of a passage explaining why “the BBC should not be required to restrict the scope of their programme” by omitting the name. In other words, the question was whether it had been convincingly shown that the alleged rapist’s privacy right was so strong as to make it necessary for the Court to exercise a form of advance editorial control by imposing a blanket prohibition on identification, whatever form the programme might ultimately take.

It seems to me that the above analysis corresponds with that of the Court of Appeal in Ali v Channel 5 [83], another case about identification, where Irwin LJ said this:

“… editorial discretion cannot render lawful an interference with privacy which cannot logically or rationally be justified by reference to the public interest served by publication. But that where there is a rational view by which public interest can justify publication, particularly giving full weight to editorial knowledge and discretion, then the court should be slow to interfere.”

This formulation (repeated verbatim at [92]) again refers to the Court giving “weight” to editorial knowledge and discretion. It does not support Mr White’s broad proposition. Nor does it mean (and Mr White did not submit), that the test is akin to the Wednesbury test for judicial review of administrative action. That would be untenable, particularly in a human rights context. Nor does the formulation mean that the publication of particular information will be defensible on the basis of a reasonable editorial belief that it was in the public interest.

It follows that it would not be correct to speak of an editorial “discretion” to take a view about the balance between competing rights which is not the view of the Court: to publish information which, on an objective Convention-compliant analysis, should not be published. Editorial latitude will be an integral part of the Court’s reasoning. But ultimately, as the Court of Appeal concluded in Campbell (CA) [68], “the media must accept responsibility for their decisions” on such matters.

The applicable tests being, by universal agreement, objective I wondered about the relevance of some of the evidence called by the defendant from its editorial staff. Some of that evidence explained how events unfolded, and what the editorial decision-makers knew, which is plainly relevant and admissible. Other aspects of the evidence appeared to be inadmissible advocacy, or statements of opinion, about how the Court should resolve the issues before it. The following was, for instance, to be found in the witness statement of Mr Savage:

“I do not believe that suspects arrested by police should generally have their names protected …

I would like to stress my belief that the media should not be prevented from publishing the names of subjects of police investigations where circumstances merit such a step. It is an important editorial issue. A general prohibition would significantly restrict news reporting today and the ability of the press to keep the public informed”

In cross-examination, Mr Savage made clear that he had not played any editorial role in the publication of the Article. But even if he had, his opinions or beliefs about how the Court should resolve these issues could never have lent support to the case for the defendant.

It does seem to me, however, that reliable evidence of the actual thought-processes of editorial decision-makers is capable of being probative in a number of ways. It could help the Court to identify whether there was a rational basis on which the public interest might be thought to justify disclosure of the disputed information. It could bolster the defendant’s case about the decision actually made. A publisher might be able to adduce evidence from editors or others, with experience and expertise not possessed by the Court, to explain and prove (for instance) how articles without names attract less interest from readers. And evidence of the editorial process could clearly go to the questions of whether (in domestic law) the defendant’s conduct matched the standards of a “relevant privacy code” and was therefore (in the language of Strasbourg) “in accordance with the ethics of journalism.”

I must beware of an overly textual analysis of the Code, given its preamble. But some things about the letter and the spirit of provisions cited above seem clear. A distinctive feature is that the Code requires proof that the public interest was actually considered:

In my judgment, the balance comes down firmly in favour of the claimant.

Reports that an arrest had taken place in Shoreham-by-Sea in connection with the Manchester bombing made a material contribution to public understanding of the police investigation into the Manchester bombing. There was much to be said in favour of publicity for a report of that fact, not least because it had been publicised for the information of the public by the police. The disclosure had little or no bearing on the claimant’s privacy rights, and none that was objectionable in the overall context. Details such as the claimant’s gender and age, and the street where the arrest took place, would enable some to identify him but again, there is no suggestion that the publication of that information represented an unjustified interference with his rights in all the circumstances. There is no dispute, and I have no doubt, that reporting of that information was legitimate. Publication beyond that requires separate justification. That is not to say that the police set the boundaries of what can legitimately be reported. It is to say that reliance cannot be placed on any privilege, or immunity, for reporting facts deliberately made public by a public authority.

I do not see that the identification of the claimant made, or was capable of making, any contribution to any public debate about the Manchester bombing, or the investigation that followed. This case is very different from In re S, Re BBC, and In re Guardian. There had been no public court process, and it could not be known at the time the Article was published whether there would or would not be proceedings in the future, involving this claimant. In any event, there was no discussion afoot about the rights and wrongs of any such process, or about the conduct of the police in effecting the arrest, nor was there any reason to believe there was any such discussion to be had. This is not a case about scrutiny of the merits of official action.

Neither of the factors, listed at [106(i) and (ii)] above, supports the view that disclosure of the claimant’s name, and other identifying details, made any contribution to the public interest. Factors (iii) and (iv) are broad and lacking in focus. There was another side to the “ostensibly … alarming” development represented by an arrest far away from Manchester: it might have proved a false trail, as indeed it did. The defendant was in no position at the time to assess, and inform its readers about, the true significance of the development. Naming the claimant was not capable of contributing to that aim. The proposition that there was a public interest in reporting on “the nature…of the police investigation in Shoreham” is too broad to be meaningful for present purposes. The answer would inevitably depend on what the nature of that investigation was, and what details were being reported. The “potential significance” of that investigation was, in a broad sense, obvious. It might have resulted in additional charges of involvement with the bombing. But it might equally have emerged that the investigation had (as it proved) gone up a blind alley, involving the arrest – however justified in legal terms – of an entirely innocent man. Factor (vii) is similarly unfocussed. Reporting of an arrest, without a name, would tend to reassure the public that the police were doing their job. It is unclear why the identification of the arrested man, or the provision of additional details about his occupation, or nationality, should be thought to provide additional reassurance. If – as is my opinion – the provision of those additional details tended to suggest that he might be guilty, that might be reassuring but at the same time, and more importantly, it would tend to undermine the public interest by publicly prejudging a potential criminal process, with no evidential basis for doing so.

The real nub of the defendant’s case lies in factors (v) and (vi): the “What’s in a name?” point. In the abstract, and as a general point, this is important but uncontroversial. There is no need for evidence to establish that in general anonymised reports are less interesting and attractive to readers than those that give names and personal information about an individual such as his age, nationality, address, occupation, appearance, and details about how he lives his life and his relationships with others. But (whatever Mr Savage believes) it does not follow that naming those arrested is always justified. The focus must, as ever, be on the specifics of the case.

Did the objective of engaging the interest of the public in the subject-matter and content of the Article amount to a pressing social need that made it necessary to override this claimant’s expectation of privacy in respect of the Information? I see no reason to think that it did. The claimant’s name undoubtedly did make for rather more interesting coverage, but it achieved no other public interest purpose. It cannot be said that the inclusion of the name was crucial, or anything close to it, when it comes to engaging the interest of the public. The Article contained a great deal about other aspects of the Manchester bombing story, and a large number of photographs. The topic was of absorbing public interest, even without all the names. The proposition that “disembodied coverage” would have made it harder for readers to understand what was going on in the investigation cannot be sustained. This seems to me to be both condescending and illogical. The defendant and others published reports of the arrest without the claimant’s name or identifying details (and without the names of many other arrested persons). These reports made clear the relevant aspects of the “extent and progress” of the investigation: the police were conducting a thorough investigation, beyond the boundaries of Manchester, which had led them to make an arrest in Shoreham. The naming of the claimant could not aid an understanding of the “extent, progress and direction of the investigation”.

Looking at the matter from the Article 10 perspective, the legitimate aim of protecting the claimant’s privacy rights is one that – as I have said – carries real and significant weight. The reasons that justify the general rule in favour of protection are clear and convincing, and the factors that count in favour of applying that rule in this case are strong. This legitimate aim could only be achieved by maintaining the claimant’s anonymity in reports of his arrest. No lesser measure would have been practicable or effective. The self-restraint involved would not have impaired the defendant’s free speech rights, or the rights of the public to be informed, to an unacceptable or disproportionate degree. The defendant was free to report on the investigation generally, with the addition of some basic details about the claimant. Had the claimant been charged, his anonymity would have come to an end.

It is easy to see the value to a newspaper publisher of naming individuals involved in matters that are of interest to the public. It makes for livelier copy, and if other publishers are naming the person it will enhance the publisher’s competitive position to do the same. But these are commercial imperatives or, at best, general factors in favour of a general rule that people can be named in newspapers. Setting them aside, and applying to the facts of this case the test identified in Ali v Channel 5, I find it hard to identify a logical or rational basis for the view that the public interest required the naming of this claimant, by this defendant, in this Article.

The evidence of the defendant’s editorial staff has not helped me, or the defendant, in that respect. In my judgment, the evidence falls well short of what the Code requires. It does not demonstrate that those responsible held a reasonable belief that identifying the claimant would serve and be proportionate to the public interest, or how such a belief was arrived at. What the evidence has proved is that the opinions expressed by Mr Savage and cited above represented the general view of the relevant editorial staff at the time: they all thought that, as a rule, the identities of those arrested by the police should be published. The defendant has not demonstrated that there was, as a matter of fact, any editorial decision-making process that led to a decision to name this claimant in this Article. There is no documentary evidence to support such a conclusion, and it is clear that there never was any such evidence. There is no reliable evidence, either, that there was even a conversation on the matter. I do not believe that Ms Partasides,

In my judgment, on the evidence adduced at this trial, the claimant’s rights were not considered and weighed against other considerations. His identification was mainly a consequence of the automatic application to this case of the general rule in which the editorial staff believed, coupled with the fact that the defendant was able to find out the claimant’s name and other personal details. He was named as soon as the editorial staff were confident that the details they had obtained were accurate. The decision to identify was partly influenced by what the editorial staff thought about the extent to which the name was already in the public domain. But this was not an evaluation of whether the claimant’s privacy rights had been eroded by publication elsewhere. It is not a case of concluding that disclosure was justified because the name was already out there. The defendant was the first to name. The Guardian article encouraged the publication of the full name, but I do not consider this was a matter of editorial discretion or judgment. The inference I draw is that this was driven by competitive considerations, or herd instinct. Adherence to the general rule in the circumstances of this case was, in all the circumstances, unreasonable.

In these circumstances, the issue of editorial latitude or deference to editorial judgment barely arises on the facts. The decision to name the claimant in the Article was not a bespoke exercise of considered editorial judgment as to whether the inclusion in the Article of sensitive personal information about this claimant served, and was proportionate to, a public interest imperative to make sure readers took an interest in reporting of the police investigation. It was more in the nature of an automated or kneejerk process, applying a rigid default rule without regard to the claimant’s rights or the particular circumstances of the case. That does not appear to be in conformity with the Code. But even if there are cases, in which the Code’s requirements can be satisfied by simply following a general rule, this cannot be one of them. Here, the default rule was the opposite of the legal starting point. Its application was partly a result of ignorance. It is evident that the senior editor was ill-informed about the Code, and that she and others were ignorant of the College of Policing Guidance, and its stated rationale.

My conclusions on the facts are based on what the contemporary documents do and do not show, and my assessment of the written and (in particular) the oral evidence of the four editorial witnesses. It is unnecessary to identify exhaustively the material which underpins my findings, but I refer in particular to the following evidence of Ms Partasides, who was the senior and effectively the sole decision-maker.

The evidence of Amanda Williams about the public interest had defects similar to those of Mr Savage’s statement, quoted above, and Mr Partasides’ written evidence.

Ms Williams’ statement asserted that it “would be hugely difficult to report” on the investigation without identifying the individuals, but this of course is what the defendant (and many others) did do, for many hours, before the first iteration of the Article that is complained of, at 12:47. This was one or many passages in her witness statement which presented arguments, rather than statements of fact about what she did or said or thought on 29 May 2017. The clear impression I formed, when she was challenged in cross-examination about those arguments, was that they were not matters she had in mind at the time, and she had not thought them through. 136. Mr Duell’s evidence had flaws that reflected those I have already identified.

For the reasons that follow, my award of damages is £83,000, comprising two elements: (1) general damages to compensate for the wrongful disclosure, the consequent loss of status, and the distress, anxiety and other emotional harm that this caused, in the sum of £50,000, and (2) special damages for financial losses caused by the wrongful act, in the sum of £33,000. The award of general damages includes aggravated damages, but not compensation for injury to reputation, or for distress caused by such injury. It is intended to compensate for the fact and consequences of this defendant’s publication, in isolation from the conduct of others; but it is not reduced because other publishers disclosed the same or similar information.

The aim is to compensate the claimant for material and non-material loss or damage sustained by him as a result of the tort. It is for the claimant to prove the fact, causation and amount of the harm. Certain general principles are clear and uncontroversial.

In Richard v BBC [350(a)-(b)], Mann J identified some additional heads of harm that were compensatable “in this case”. I emphasise them in the citation:

“(a)

Damages can and should be awarded for distress, damage to health, invasion of … privacy (or depriving him of the right to control the use of his private information) and damage to his dignity, status and reputation …

(b)

The general adverse effect on his lifestyle (which will be a function of the matters in (a).”

There would certainly seem to be no reason why, on appropriate facts, a claimant should not recover damages for injury to his health, and the point of principle is not in dispute. The Particulars of Claim allege, in support of the claim for damages, that “the claimant has been diagnosed with a depressive illness which is attributable to the damage caused by the publication of his name in relation to his arrest.” In opening, Mr Tomlinson relied on this point. But he did not press it in closing, and I make no award under this head.

Claims of this kind in media cases are not unknown, but they are unusual. When advanced they will normally require expert evidence, and – being claims for personal injury - the requirements of Practice Direction 16D and Part 35 would seem to be applicable. Here, no medical report has been served, there is no expert evidence, and the evidence of fact is very limited. It is contained in Mr Sicri’s witness statement, which says that in February 2018 he was feeling depressed, discussed it with his doctor, was prescribed citalopram, and recommended to see a psychologist. This evidence was not challenged, but it is at best hearsay evidence, without identifying the practitioner, and with no permission to adduce expert evidence. Moreover, it does not identify an illness or assert a diagnosis, or a prognosis, and I have been shown no medical records. I do not regard the evidence as sufficient to prove the pleaded case, or to justify any award for a recognised psychiatric illness, as distinct from severe upset, distress, anxiety, and depression – as those terms are understood outside the medical field. I note that damages for injury to health were claimed, but not awarded, in ZXC1.

The broad proposition that a person whose private information has been misused is entitled to compensation for the “effect on his lifestyle” is not in dispute. But it is related

Three considerations relevant to the assessment of damages were identified by Mann J in Richard [350], and adopted and applied by Nicklin J in ZXC1 [147], [155]. I shall apply them likewise:

“(c)

The nature and content of the private information revealed. The more private and significant the information, the greater the effect on the subject will be (or will be likely to be). In this case it was extremely serious. It was not merely the fact that an allegation had been made. The fact that the police were investigating and even conducting a search gave significant emphasis to the underlying fact of that an allegation had been made.

(d)

The scope of the publication. The wider the publication, the greater the likely invasion and the greater the effect on the individual.

(e)

The presentation of the publication. Sensationalist treatment might have a greater effect, and amount to a more serious invasion, than a more measured publication”.

Any award of general damages must be proportionate in amount; it must be no more than is necessary to achieve the aim of compensation. The Court should have regard to the levels of award in claims for personal injury, ensuring some reasonable relationship between the two to maintain coherence and uphold confidence in the impartiality of the justice system: Mosley [218-221] and Gulati CA [61-62] (Arden LJ), citing John v MGN Ltd [1997] QB 586. Whether the right course is to make a single award or multiple awards depends on the facts, and is a matter for the Judge’s discretion; but a single global award is likely to be appropriate for a single wrongful act: Gulati CA [68-69].

The claimant relies on Richard as authority that he can. Mr Tomlinson points out that Article 8 confers rights to the protection of an individual’s reputation, and the reputational impact of disclosure is the reason for protecting information of this kind in the tort of misuse of private information. He submits that it would be anomalous to deny compensation if the claimant proves a wrongful disclosure causing reputational damage. The defendant relies on ZXC1 as authority to the contrary. Mr White also submits that there are good reasons of principle and practicality why this claimant should not be permitted to use his claim in misuse of private information as a vehicle for claiming damages for harm to reputation. To do so would be to circumvent the regime for balancing reputation and free speech that has been carefully crafted by Parliament and the common law, via the tort of defamation.

Having carefully scrutinised the judgments in Richard and ZXC1, I am left unpersuaded by the arguments of Counsel, that I must choose between two inconsistent approaches. These are two decisions, in a developing field of jurisprudence, that were very different

The submission advanced to Mann J in Richard was that “in so far as Sir Cliff’s claim was based on damage to reputation then that could not be the subject of a privacy claim; loss of reputation [is] the sole province of defamation” ([334]). The Judge’s decision was to “reject this attempt by the BBC to limit the scope of the damages to which it is liable” [346] and to hold that Sir Cliff was entitled to be compensated for reputational harm [350(a)]. In summary, Mann J rejected the defendant’s argument that the proposition they advanced was already established or implicit in the authorities; identified a number of authoritative pronouncements that privacy law may, and does, protect reputation; and reasoned (at [345]) that “If the protection of reputation is part of the function of privacy law then that must be reflected in the right of the court to give damages which relate to loss of reputation.” He held that the facts of the case before him were “a very good example”:

“Mr Millar submitted that the facts of the present case ‘vividly’ demonstrate why damage to reputation must be excluded from a claim in privacy, because the facts (that Sir Cliff was being investigated for historic sexual abuse involving a minor) were true and the freedom of the press to report those true facts should not be undermined by the award of damages for misuse of private information. I think the exact opposite is the case. The facts of this case (on the footing that the public interest in reporting does not outweigh Sir Cliff’s privacy rights) vividly demonstrate why damages should be available for an invasion of privacy resulting

(inter alia) in damage to reputation.”

The limited nature of the defence submission recorded in this passage is notable. It is well-established in defamation law, that (1) the ordinary reader will normally understand a statement that a person has been arrested for a crime to mean that there are reasonable grounds for suspecting him of that crime; (2) accordingly, such a statement can only be defended as true by proving that there were objectively reasonable grounds for suspicion; (3) the grounds to be relied on must focus on some conduct of the claimant by which he brought suspicion on himself; and (4) proof of the mere fact of suspicion or investigation cannot be an answer to a claim: see Gatley on Libel and Slander 12^th ed paras 11.18, 30.8, and cases there cited; Miller v Associated Newspapers Ltd [2014] EWHC 3721 (QB) [13-15] (Sharp J, DBE). In Richard, it was only the bare fact of an investigation that the BBC was asserting to be true. Put another way, the defendant was not asserting that the information was true in any natural and ordinary, defamatory meaning. Nor was the BBC asserting that any defence or answer other than truth would have been available to them, had a libel action been pursued.

Against this background, the ratio of this aspect of Mann J’s decision can I think be encapsulated as follows: (1) neither authority, nor general principle, leads to the conclusion that compensation for reputational harm may never be claimed and awarded in a claim for misuse of private information; (2) the mere fact that, in an individual case, the information is true in its literal meaning is not a good reason for refusing to make such an award; (3) on the facts of Richard, the literal truth of the information could not

In ZXC1, the claimant advanced his case on the express basis that the truth or falsity of the underlying information was not a relevant issue. Nicklin J held that, in those circumstances, “whilst he can legitimately rely upon the distress and embarrassment that he has felt as a result of the publication of the Information, he cannot be awarded any element of purely reputational damages”: [152]. The Judge did not conclude that awards in misuse of private information cases can never include damages for reputational injury. He reasoned (at [149-152]) that it would “ordinarily” be wrong in principle to award damages for (a) damage to reputation, or (b) to vindicate reputation, whilst at the same time holding that the truth or falsity of the information is irrelevant. His reasoning was that it is a fundamental principle of defamation law that reputations should not be vindicated on a false basis, but the truth or falsity of the information is generally irrelevant in a claim for misuse. The Judge was not, here, addressing literal truth, but rather the truth of the ordinary defamatory meaning of the information. That is clear from the following further passages at [150(iii)] and [151]:

“(iii)

if a claimant wishes to seek an award of damages that reflect elements (a) and (b), then a defendant would have to be permitted to defend as true any underlying defamatory allegations that fall within the claim for misuse of private information (or advance any other defence that would have been available had the claim been brought in defamation: cf. Rudd v Bridle & Another [2019] EWHC 893 (QB) [60(5)] per Warby J);

…

Again, I would attribute a relatively narrow ratio to this decision. ZXC1 is not, in my view, authority for the proposition that a claimant suing for misuse can never recover damages for reputational harm. That would be inconsistent with Richard, and is not what Nicklin J said. In my judgment, the core principle of law for which ZXC1 stands is encapsulated in the passage I have cited from [151]. Applying that principle to the facts, the Judge held the claimant had disentitled himself to damages for reputational harm by conducting the case on the footing that truth was irrelevant. That was not the position in Richard. ZXC1 is distinguishable from Richard on other grounds. Evidently, in Richard, the BBC had, and took, the opportunity to assert the truth of the information, in its narrow literal meaning. There is no indication that the BBC was denied the opportunity to advance any wider defence. There is no reason to suppose that, if sued in defamation, the BBC could have advanced any defence of truth that complied with

Richard is not the only recent case in which compensation has been awarded for reputational harm in a tort other than defamation. In Aven v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB), it was conceded that such an award could be made under DPA s 13, and I made one, in respect of processing of information about two claimants in breach of the statutory duty imposed by DPA s 4. However, that was information which the claimants had proved to be false, which I held to be “seriously defamatory”, and I proceeded on the basis that, in such a case, the Court should identify the meaning of the information and assess compensation according to established defamation principles. In short, the case was treated for these purposes as if were a successful claim in defamation. The reason was that, otherwise, the law would lack coherence. I am not sure Mann J took the same approach in Richard, but nor do I think he said anything inconsistent with this.

In Aven v Orbis I said that “The issue might deserve closer attention in different circumstances”: see [196]. The present case calls for a further look.

Neither Richard, nor any other authority, holds that an individual can recover, in a misuse claim, damages for reputational injury caused by the publication of information that is defamatory but substantially true. The common law has prohibited this for centuries, and in 2013 Parliament put that prohibition on a statutory footing via s 2 of the Defamation Act 2013, if the claim is brought in defamation. I see no principled justification for allowing any such claim to be maintained in the newly discovered tort of misuse of private information. The facts that the information is private, and that its publication represents a misuse of the information, do not appear to me to be relevant, or sufficient, reasons for doing so. Nor does the fact that the rationale for protecting the information is the reputational harm that disclosure might cause.

The attractions of the syllogism relied on by Mr Tomlinson are obvious: the disclosure is wrong because of the reputational harm it might cause; Article 8 requires English law to provide a remedy for that wrong; so that should be done by awarding damages for reputational harm in the very tort that protects the individual against the disclosure. But the argument begs the question of what reputational consequences are required to be actionable; and bypasses the fact that the Convention does not require the remedy to be provided through any particular domestic cause of action. I see force in the submission of Mr White, that the existence of two parallel regimes to govern overlapping claims would be unsatisfactory, “for practical reasons underpinned by principle”.

The example I raised in the course of argument was an obvious one: what of the terror suspect whose identity as such is wrongfully disclosed, in breach of his privacy rights, but who is later charged and rightly convicted? It would surely be offensive to longcherished notions of justice to award him compensation on the footing that all the reputational harm caused by disclosure between arrest and charge was unwarranted? That could not happen if the claim was brought in defamation. I do not believe it should happen in misuse of private information. In order to avoid that result, it would be necessary – so it seems to me – to import the relevant legal principles from defamation. That would be a cumbersome process. One may ask why should it be regarded as necessary in a democratic society to do this, or – more generally – to interfere with freedom of speech by affording a remedy for reputational harm by means of this emergent tort, when another, mature tort is available for the purpose? It seems hard to answer this question. When Parliament has so recently legislated in this field, it becomes harder.

Over the years, the Court has repeatedly resisted attempts to use causes of action, other than defamation, to prevent publication of defamatory statements, or to recover damages for reputational harm after the event. Mr White refers to cases where claimants have attempted to get round s 4A of the 1980 Act by suing for “interference with rights” rather than libel or malicious falsehood, such as Cornwall Gardens Pte Ltd v RO Garrard & Co Ltd [2001] EWCA Civ 699. Other examples could be multiplied, but they include a well-known list of failed attempts to circumvent the rule against prior restraint, in Bonnard v Perryman [1891] 2 Ch 269, by suing in other torts (such as unlawful interference with contract, malicious falsehood, breach of confidence, trespass, copyright: see Bestobel Paints Ltd v Bigg [1975] FSR 421, Microdata Information Services Ltd v Rivendale Ltd [1991] FSR 681 (CA), Service Corporation v Channel Four [1999] EMLR 93 (Lightman J), Tillery Valley Foods v Channel Four [2004] EWHC 1075 (Ch) [21] (Mann J)). In the misuse case of McKennitt v Ash, at [79], Buxton LJ identified the mischief:

“If it could be shown that a claim in breach of confidence was brought where the nub of the case was a complaint of the falsity of the allegations, and that that was done in order to avoid the rules of the tort of defamation, then objections could be raised in terms of abuse of process.”

For all these reasons, it does seem to me that there remains a good deal to be said today for the principle, identified long ago by the Court of Appeal in Lonrho v Fayed (No 5) [1993] 1 WLR 1489, that reputational damages are only available in defamation and limited other torts which are premised on the falsity of the information. In Richard, that case was distinguished by Mann J, but even putting that authority aside, there would in my opinion be merit in a general rule that a claimant who seeks to clear his name of a defamatory imputation arising from a wrongful disclosure of private information, and to recover damages for reputational harm, should be required to bring a claim in defamation.

Similar reasoning seems to me to apply to other defences or justifications that might be available in answer to a claim in defamation – what Mr White calls the “wider safeguards for freedom of expression” contained in defamation law. These encompass other statutory provisions, including the threshold of “serious” reputational harm in s 1 of the Defamation Act 2013, the public interest defence provided for by s 4 of that Act, and the unique limitation regime provided for in defamation and malicious falsehood. I have already mentioned s 4A of the 1980 Act and s 8 of the 2013 Act. Also relevant, in the present case, is s 32A of the 1980 Act, by which the Court has a power to disapply the 1-year limitation period where that is just and equitable.

It is not part of the ratio of ZXC1, or that of Rudd v Bridle, that the defendant in a misuse claim must always be allowed to advance any other defence that would have been available had the claim been brought in defamation. Rudd v Bridle was a data protection claim seeking, among other things, compensation under s 13 of the Data Protection Act

The same two questions arise: (1) is a claimant in misuse to be awarded damages for reputational injury, without regard to the defences that would or might have been available had the claim been brought in defamation? And (2) if not, what justification can there be for importing the defamation principles into the tort of misuse, rather than leaving a claimant to sue in the “natural” cause of action? Again, my answers would be “no”, and “no sufficiently compelling justification”. The reasons are, in substance, those that I have given, but the facts of this case provide a specific illustration of why no is the right answer to my question (1). If the claim for reputational loss had been pursued by means of a claim in libel it would have been time-barred, and it is clear the defendant would have taken the point. An application to disapply the limitation period might have been made, but the claimant would have had to overcome the strong rule, in the authorities, that such applications should only rarely succeed. He would also have had to persuade the Court that it was just and equitable to make an order that would negate the “single publication rule” in s 8 of the 2013 Act, by which Parliament sought to protect publishers from rolling liability for online content. To allow the same loss to be claimed by reliance on a different tort would remove any such obstacles, and so far from being necessary in a democratic society would seem to be inconsistent with the manifest intention of Parliament.

Consideration of question (2) leads me to the same conclusion as Mr White: to allow privacy actions to be fought as if they were defamation actions would be “a recipe for legal and procedural chaos”. He referred to the risk of claims for damage to reputation descending into “satellite libel actions” but without the normal procedural and statutory safeguards applicable to such claims. Perhaps a better analogy is shadow libel actions.

For the reasons I have given I would, if necessary, hold that damages for injury to reputation are not available in a claim for misuse of private information. A claimant who wishes to recover such damages must sue in defamation or one of the other torts in which it is established that reputational harm is compensatable. These conclusions are not inconsistent with Aven v Orbis, where the claim was in data protection. I do not consider them to be at odds with the decision in Richard, either: on the face of it, Sir Cliff would have had an unanswerable claim in libel. The arguments in this case have been different from those considered and rejected by Mann J, and my reasons invoke

Having said all this, I believe I can decide the issue in this case on the narrower basis that it would not be just, in all the circumstances, to award compensation for reputational harm. In my judgment, I could only do so by reaching a conclusion on meaning, defamatory tendency and defamatory impact, and then asking what defences would be available and reaching conclusions on whether any of them are made out on the evidence. The statements of case and arguments of the parties do not equip me to do that, in a way that is just to both parties.

In fairness to the claimant, I should say that he clearly has a reasonable argument on the meaning of the Article, and he plainly did not conduct himself in such a way as to give rise to reasonable suspicion. Suspicion fell on him for other reasons. I have concluded that the Article was in breach of the claimant’s privacy rights, not justified in the public interest. I have also made some findings of fact that would be relevant in a defamation case, for instance, if a s 4 defence were to have been run. But that is not enough.

In all these circumstances, I believe that the claim for compensation in respect of reputational harm is – in the technical sense – an abuse of process. By that I mean that it involves the use of a cause of action for an inappropriate purpose, and in a way that obstructs the court’s ability to do justice.

Aspects of the claimant’s case on damages are uncontroversial, as a matter of principle. Factors that are admitted, or I find, to be relevant include, of course, the nature of the information. They also include (a) the scale and extent of publication; (b) the fact that the defendant is not responsible for any distress caused by the fact of being arrested, being held in custody and questioned on suspicion of terrorism, which is to be discounted; (c) the fact that the claimant was unaware of, and hence unaffected by, publication that took place whilst he was in custody; (d) the distress he was caused by learning, upon release, that he had been publicly named as a terror suspect; (e) the fact that he was unwillingly thrust into the public eye as a result of being named; (f) the effect of these matters on his lifestyle, including his inability to return home for 10 days on advice from the police, the need to move to a new town, and repeated unwanted contact by media organisations, which compelled him to change his mobile number; and (g) the fact that the defendant continued to publish the Article, unamended, until February 2018.

There are four main issues for consideration. The defendant complains that:

I agree that distress, due to reputational injury, is a feature of the pleaded case on aggravated damages. I do not award damages for the adverse impact which any defamatory imputation conveyed by the Article had on the attitudes of others towards the claimant – matters such as (in the classic terminology), holding him in contempt, shunning, or avoiding him, because his reputation had been lowered in their estimation, or for the impact on the claimant’s feelings of being defamed, and being treated with contempt or shunned or avoided for that reason. This means that I leave out of account several of the matters pleaded in paragraph 14 of the Particulars of Claim, including those at 14(6) (quoted at [59] above), 14(7) (fear of being attacked post-release), and 14(8) (abusive Facebook messages, one suggesting the claimant should commit suicide, and another that he should be “banged up for life”). Any attack would necessarily have been motivated by a belief in guilt. The messages are grossly offensive and upsetting

In my judgment, however, this is a different matter from the impact of the Article on the claimant’s dignity, or standing, and distress resulting from that. The distinction may be difficult to draw in practice, but it is real. In this case, the Article led or contributed to the claimant’s public status becoming a deeply undignified one: he became, in the eyes of millions, the 23-year-old Libyan trainee pilot who had been arrested and held in custody under suspicion of involvement with the Manchester terrorist attack. In my judgment, the evidence justifies the conclusion that this caused or made a material contribution to others distancing themselves – shunning him - regardless of what they took to be the truth of the matter. These matters led to distress and anxiety, and all of this was damage of a kind that was reasonably foreseeable.

I therefore take account, in my award, of some of the disputed allegations pleaded in paragraph 14 of the Particulars of Claim, which I find proved to this extent: (10) the closure of the claimant’s PayPal and NatWest accounts in July 2017 caused him distress; (13) the termination of the claimant’s employment or engagement by ELH caused him distress. Both of these matters were, in my judgment, caused (or materially contributed to) by the loss of standing consequent on the disclosure of the Information. In the case of the accounts, that is a matter of inference based on the well-known approach of financial institutions. In the case of ELH, it is clear, on the evidence, that the company terminated the claimant’s employment because of the publicity, rather than the reputational impact of publication.

The claimant complains, in aggravation of damages, that the defendant “republished the Information” in two further articles: the shortened hard copy version of the Article, published on 30 May 2017, and an online article on www.dailymail.co.uk. Mr White takes objection, submitting that this is an improper approach. The claimant should either sue on those articles, separately, or not rely on them at all. Mr White relies on Collins Stewart Ltd v Financial Times [2005] EWHC 262 (QB) [2006] EMLR 5 [24][27] (Gray J) and observations of mine in Sussex (No 1) at [69], [74].

The principles are not in doubt, but they are only partly engaged on the facts of this case. The pleaded case is that the defendant caused him more distress by publishing the same information in later articles, and there is some evidence to support that case. I see no difficulty with taking that into account. The defendant had a full opportunity to advance a case that this was justified. In my judgment it has in fact advanced such a case, and failed to make it good; no reason has been advanced for distinguishing those later articles from the one that is sued upon, in this respect. What the claimant cannot do is claim aggravated damages for the publication in later articles of different defamatory or private information. His evidence that the article of 31 May contained “the very hurtful and damaging allegation that I was a supporter of ISIS” relies on reputational harm, falls outside the pleaded case, is therefore inadmissible, and (for good measure) offends the principles relied on by Mr White.

Complaint was made of the impact of “global” publication, and it is pleaded that the claimant’s family in Libya suffered great distress, which in turn upset the claimant. I accept the claimant’s evidence of the distress his parents suffered at learning of his arrest, and the “reflex” distress which that caused him. But these aspects of the claimant’s case troubled me, as a matter of law. Misuse of private information is not one of those torts governed by the common law rule of double-actionability. At the relevant time, the rules as to applicable law were those of the Private International Law (Miscellaneous Provisions) Act 1995 or, arguably, the Rome II Regulation 864/2007/EC: see the discussion in The Law of Privacy and the Media 3^rd ed (2016) para 13.84 - 13.92. Here, there was no attempt to address the issues of foreign law that would seem to arise, and could be one of real significance: an English court should not award damages in respect of conduct that would not be wrongful according to the law that applies by those rules.

I make no award in respect of the impact of foreign publication. The issue has fallen away, for several reasons. Mr Tomlinson conceded that damages could not be recovered for reputational harm abroad, but maintained (in my view, questionably) that consequent distress was recoverable as it was sustained in England. I have found that neither reputational loss nor consequent distress can be claimed for. The evidence is that the Article was read and accessed in Libya by, at most, 29 readers, so the scale of publication there is minimal, or at least very modest indeed. The claimant has also failed to prove his case that his reflex distress was a consequence of publication or foreseeable re-publication in Libya of the Article or its gist.

The fact that others published similar information about the claimant at or about the same time has played a prominent role in the argument. I have dealt already with the defendant’s arguments to the effect that third-party publications had the effect of defeating, or reducing to little, the substantive rights the claimant would otherwise have enjoyed. The issue re-emerges in the context of damages.

The claimant’s case, as presented by Mr Tomlinson, is that a case such as this is comparable to a libel action, where there are several publications by different persons to similar effect. The distress and reputational harm may be indivisible, and each will be liable in full. Mr Tomlinson cites Dingle, and its endorsement by the Supreme Court in Lachaux v Independent Print Ltd [2020] AC 612 [24], as supportive of this approach. Mr White submits that this is misconceived. The defendant can only be liable for damage caused by its own wrongdoing, and the claimant must identify that damage and “disentangle” it evidentially from that caused by other publications. He relies on Trimingham and Ali, and a passage in Couderc. Dingle, he submits, is relevant only in libel, as a bar on the use of third-party defamation as a means of proving a pre-existing bad reputation.

In my judgment, the right approach lies between these two extremes, and depends on the nature of the damage or alleged damage that is under consideration.

It is on this basis that I have approached the issues on damages. The points at [178(5) and (7)] above explain my conclusion ([175] above), that the reflex loss claim fails on the facts. The claimant’s case is that his family learned of his arrest as a result of reporting in Arabic in Libya by the news channel Alhadet Al-Arabiya. His evidence was to the same effect. But I accept the submission of Mr White that Al-Arabiya’s reporting cannot be traced to anything published by the defendant. On the contrary, there is positive evidence that Al-Arabiya relied on other sources. I have before me a translation of the full version of the article, which expressly refers to reporting in the Guardian, Telegraph, Sun and Mirror but makes no reference to MailOnline. The claimant accepted, in cross-examination, that his mother had seemingly been contacted in Libya by representatives of the Guardian and BBC. On the balance of probabilities, the Article was not a cause of this head of loss.

Other specific items of loss or damage that were pleaded, and supported by evidence, have fallen by the wayside as a result of my decisions on foreign publication and “depressive illness”. Failure to obtain employment as a pilot is a matter best dealt with under the heading of special damage, but I can say now that the evidence did not establish the fact or causation of that head of damage. Other allegations that the claimant has suffered financially will also be dealt with in that section of this judgment.

Turning to the general issue of harm to the interests I have identified, the first point is that my decision to rule out damages for reputational harm means that I am not concerned with the rule in Dingle. Mr Tomlinson is right to submit that the defendant cannot escape liability by reference to what others did, nor can it mitigate the compensation due for the harm it caused by providing that others caused other harm. I do not accept Mr Tomlinson’s submission that the damage caused to the claimant on 29 May 2017 is “indivisible”. For reasons I have given above, that is not what the evidence suggests. The defendant is liable for the harm of which its wrongdoing was a

It is impossible to be precise, but helpful indicators of the scale of publication come from the defendant’s disclosure and oral evidence. Disclosure shows that the Article had a total of 189,518 unique visitors in England and Wales on 29 and 30 May 2017 and a total of 224,573 article views. The oral evidence shows that the Article was also previewed on the MailOnline homepage. The previous could be read without clicking through onto the Article itself. This suggests a larger number of views. Of course, it is only later versions of the Article that are complained of. But the scale of publication was very substantial. It is reasonable to infer a degree of “percolation”, that is – republication or dissemination by readers of MailOnline. I have already sufficiently indicated my conclusions about the extent of any overlap between the readership of MailOnline and the Guardian. It is unnecessary to consider the point in relation to other newspapers or online publications. Mr White has sought to exploit a passage in the claimant’s witness statement, saying “all the major newspapers were reporting that I had been arrested”, but that is not what the evidence shows. They were reporting the arrest but without the name.

Applying the principles identified above, the appropriate sum in general damages, for the heads of loss and damage I have recognised as meriting compensation as a matter of law and fact, is £50,000.

In reaching that conclusion, I have taken account of the inherently serious nature of the disclosure, and the claimant’s convincing evidence of its impact on him. He was, I am satisfied, very upset at the defendant’s determination to publish his name, and shocked at its failure to take down or amend the Article once it knew of his release. His evidence was corroborated by that of Mr Elazoumi, who described the claimant as paranoid, and refusing to leave the house, in the wake of publication. I have taken account of my findings on the financial loss claim (below), to assess what should be awarded for the distress of job loss. I have reviewed the Judicial College Guidelines for the assessment of General Damages in Personal Injury cases, focussing on awards for psychiatric injuries and those affecting the senses. I have also taken account of everything submitted on each side, whether or not I have dealt with it specifically in what is already a lengthy judgment.

I should mention three further matters.

I have already indicated that the claimant has satisfied me that he suffered financial loss as a result of his identification as a terror suspect, and that the publication of the Article was a cause of such financial loss. The bigger issue is how much of the pleaded claim has been established, taking account of what emerged in cross-examination, and the contents of the documentary evidence.

There are two heads of claim: (1) loss of earnings; and (2) the cost of procuring the removal of re-publications by others, or “take-down”. The first head of claim is for direct consequential loss. The second head can be categorised as the cost of reasonable steps in mitigation of damage. It has two elements: costs incurred and costs of steps which have yet to be taken. The defendant does not dispute the validity, in principle, of either head of claim. The fate of each depends on the facts. My findings are that the claimant has not established any loss of earnings, but he is entitled to £33,000 to cover the reasonable cost of steps taken and to be taken to secure “take-down”. I can explain these findings quite shortly.

As to loss of earnings:

As for the costs of take-down, this claim has been whittled down through agreement. Some of the articles originally relied on proved to have resulted from other publications, notably the Guardian.

In summary, I have found as follows. The claimant had a right to expect that the defendant would not publish his identity as the 23-year-old man arrested on suspicion of involvement in the Manchester Arena bombing. By 12:47 on 29 May 2017, the defendant had violated that right; it had no, or no sufficient public interest justification for identifying the claimant. It continued to do so. Later, another publisher did the same or similar. But the claimant’s right to have the defendant respect his privacy was not defeated or significantly weakened by the fact that others failed to do so. He is entitled to compensation. The appropriate sum is £83,000 in general and special damages.