A series of “unpleasant, personally critical publications” by a blogger about a senior local government officer did not found a successful claim for harassment under the Protection from Harassment Act 1997, a High Court judge has ruled.
In McNally v Saunders  EWHC 2012 (QB) Mr Justice Chamberlain granted summary judgment to the defendant, Julian Saunders, also known as ‘The Sandwell Skidder’.
However, the judge said nothing he had said should be taken as implying that he considered any of the criticisms made by Mr Saunders of Dr Lisa McNally, Director of Public Health at Sandwell Metropolitan Borough Council, to be justified. “Equally, nothing in this judgment casts any doubt on the effects which she says they have had on her.”
The defendant, a semi-retired solicitor, has published a blog, In the Public Domain?, since 2013. This was initially a response to Sandwell’s decision to withdraw funding for an art centre run by Mr Saunders’ wife.
The blog and many of Mr Saunders’ other online posts are about the council, its activities and its elected members and officers.
Dr McNally alleged that, by publishing a series of blog articles and tweets about her, Mr Saunders pursued a course of conduct amounting to harassment contrary to s. 3 of the 1997 Act.
She sought an injunction to restrain Mr Saunders from continuing to harass her and damages for distress and injury to feelings. There was originally an additional claim under the General Data Protection Regulation and the Data Protection Act 2018, but that was abandoned.
The claim was brought with the support of Sandwell Council.
Mr Saunders applied to strike out the Particulars of Claim on the ground that they disclosed no reasonable grounds for bringing the claim and/or for summary judgment on the ground that the claim had no real prospect of success.
Mr Justice Chamberlain said: “Mr Saunders says that the blog is ‘directed at exposing corruption, cronyism and incompetence’ at the Council. He describes it as ‘satirical and sensational’ and says that it uses ‘terms that might cause raised eyebrows within the [Royal Courts of Justice] but would go down well in Tipton’. Mr Saunders is an avid reader of Private Eye and aims to emulate its style. Whether he succeeds in that aim is another matter.”
As at 1 April 2021, there had been a total of 743 posts on the blog. The average readership was over 2,500. It was rare for a post to have fewer than 1,000 readers, the judge said.
Dr McNally claimed that Mr Saunders had "pursued a campaign of oppressive and unacceptable behaviour against the employees and officers of the Council since at least 2018". Particulars were given of other council employees and officers who were said to have been the targets of unfair adverse comment by Mr Saunders.
Mr Saunders argued in his witness statement that the council had, since 2014, “tried every trick in the book to close my blog down and to destroy my reputation and finances”, adding that he considered the claim to have been brought with that objective.
“I mention these wider allegations, by the Council on the one hand and by Mr Saunders on the other, because they are part of the background to this claim. The material before me does not enable me to form any concluded view about them,” the judge said.
“Nor would it be appropriate to do so. The present application requires a rigorous focus on the acts said to constitute harassment in this case, not on conduct alleged to have been directed by Mr Saunders against others, nor on the motivation for the steps the Council has taken against him.”
The tweets, posts and emails about which Dr McNally complained were issued by Mr Saunders after she had made a 2-minute video to coincide with Mental Health Awareness Week 2020 in which she revealed she had struggled with mental ill health since childhood. The five blog posts (plus three more passing references), seven tweets and two complaints to the council were published between June 2020 and February 2021.
In her Particulars of Claim, Dr McNally pleaded that the course of conduct complained of had had an impact on her mental health. She had ceased to use Facebook for anything significant because she was afraid of the comments Mr Saunders might make about her. She said she was very reluctant to accept any invitations from the media for interviews for fear of Mr Saunders' adverse commentary. She had declined an invitation to one event and agreed that she would not participate in media interviews because of Mr Saunders' actions and their impact on her. This was a matter of importance in view of her role as Director of Public Health. She had indicated that she would not be comfortable attending face-to-face Council meetings because she feared being accosted by Mr Saunders. She described feeling "crippling" anxiety about such meetings.
A blog post by the defendant on 27 January 2021 caused Dr McNally to decide to resign from the council, though that decision was postponed after discussions with Sandwell’s chief executive. She had since sought counselling. There had been effects on Dr McNally's husband and family. Dr McNally also worried about her ability to do her job at a critical time for the Borough "if someone is publicly calling into question my qualifications and suitability for the job".
Counsel for the defendant argued that the blogs, tweets and complaints were published in the context of Mr Saunders’ activities as a citizen journalist, and these publications were entitled to the same protection as those of the mainstream press.
He also suggested that the publications were nothing like the "deliberate and persistent course of targeted oppression" or the "conscious abuse… of media freedom" necessary to constitute unlawful harassment.
The publications complained of were "occasional critical remarks about the public conduct of a senior local government official", counsel for Mr Saunders said. Nor ought the defendant to have known that such publications amounted to harassment. Senior public officials should be open to scrutiny and criticism and the law provided that the limits of acceptable criticism were wider than for private individuals, he added.
Counsel for Dr McNally meanwhile argued that the defendant’s conduct met the threshold for harassment under the 1997 Act. She accepted that Article 10 ECHR (freedom of expression) was engaged, but not that Mr Saunders' activities attracted the highest level of protection. Although he sought to portray himself as a "citizen journalist", as an unregulated lone blogger, he was not entitled to the protection accorded by the authorities to journalism in the mainstream press, she submitted.
Her case also was that Mr Saunders ought to have known that what he was doing amounted to harassment. Counsel for Dr McNally relied in particular on the fact that the defendant knew of her history of mental ill-health and carried on taunting her in circumstances where it would be obvious to a reasonable person in possession of the same information that she would be distressed by his doing.
Mr Justice Chamberlain noted that the authorities made it clear that a course of conduct consisting entirely of publication to the world at large could constitute harassment. But he added that the authorities also emphasised that ‘publication-only’ harassment cases would be rare and exceptional.
The judge noted that The Sandwell Skidder was not part of the mainstream press or media. “Its focus is narrow and local. It is not regulated. Mr Saunders is not a formally trained journalist. Although he is apparently assisted by others, there is nothing to suggest that his posts are reviewed by an editor. The content of the posts themselves suggests the contrary. Given their frequently puerile tone and style, a casual reader, whether in Tipton or anywhere else, might be surprised to discover that they are the work of a semi-retired former solicitor.”
However, Mr Justice Chamberlain said none of these features disentitled them to the protections afforded by the law to journalistic expression. “The enhanced protection which Article 10 gives to such expression is not limited to those in the mainstream or conventional press or media. Even if it were possible reliably to identify outlets falling into this vague category, there is no reason of principle why publications that fall outside it should, for that reason, receive lesser protection from the law.”
The judge added that a review of the blog posts in which the material complained of appeared showed that Mr Saunders employed the same abrasive tone and style throughout, whomever he was criticising. “This does not mean that his output enjoys any lesser protection than would be applicable to more moderately expressed prose.”
Mr Justice Chamberlain accepted as a fair description that there were “sexualised comments” in Mr Saunders’ blog posts. However, he said it was important to consider the language of the posts and tweets as a whole. “The dominant impression is that they contain trenchant criticism of Dr McNally, rather than just abuse or insults.”
The judge said that there was no doubt that, in commenting on her mental ill-health, Mr Saunders was commenting on something intensely personal to Dr McNally.
“But the subject matter was in no sense private; it was something Dr McNally had herself decided to place in the public domain. For my part, I regard that decision as reflecting favourably on Dr McNally, because her disclosure was likely to have the effect she intended – i.e. to reassure others with mental health conditions that they are not alone and that it is possible to live with and recover from them,” he said.
“But someone who decides to make a public disclosure of this kind must expect that, while many people are likely to comment favourably, some may choose to make comments that are adverse. This is one of the reasons why those who make such disclosures are often aptly described as courageous.”
The judge said he accepted that the limits of acceptable criticism of officers would be narrower than in the case of elected politician, but some public criticism was “inevitable”.
In this case, the fact that Dr McNally occupied a public health role during a pandemic meant that her performance of the role was of particular public importance, he found. “The public interest in that performance being subject to scrutiny and criticism was commensurately greater. The extent of that public interest does not depend on the criticisms being justified. If it did, the court would be assuming for itself the role of deciding whether criticisms made of public officials were well-founded. Because that would not be knowable in advance, it would operate to disincentivise critical comment.”
The judge said it was necessary to balance the publisher’s right to freedom of expression against the rights and interests of the claimant. He noted that in this case “there was no allegation that anything said was factually untrue (as distinct from being unjustified comment)”.
Mr Justice Chamberlain also said that Mr Saunders’ criticisms were directed at things Dr McNally had chosen to say in public very recently. “That being so, it is far from obvious to me that Article 8 [the right to respect for private and family life] is engaged at all. If it is (for example on the basis that the criticisms were about her mental health, which is an aspect of her "physical and psychological integrity": see Pretty v United Kingdom (2002) 35 EHRR 1, ), the weight to be attached to her Article 8 interests is significantly diminished by her own decision to put her history of mental ill-health into the public domain.”
The judge said that, separately from any Article 8 right of Dr McNally's, it was necessary to consider the public interest in Dr McNally being able to continue in her important public role without being subject to conduct which undermines her ability to do so.
“For these purposes, at the summary judgment stage, I am willing to assume that there is a powerful public interest in Dr McNally remaining in post, particularly given the importance of her role to the Council's response to the pandemic. I also assume the accuracy of what Dr McNally has said about the impact of Mr Saunders' words on her.”
However, the judge said, “even so, these public interests are outweighed by Mr Saunders' Article 10 rights”. This was, given that:
(a) the complaint letters did not add materially to the course of conduct complained of;
(b) the course of conduct therefore involved, materially, publication to the world at large and, at least after Dr McNally had "blocked" him on Twitter, there was no evidence that Mr Saunders took steps to bring the posts or tweets to her attention;
(c) even though Mr Saunders' blog was not part of the "mainstream" or "conventional" media, the posts and tweets were "journalistic material" for the purposes of s. 2(4) of the HRA and attracted the enhanced protection given by Article 10 to journalistic expression;
(d) their puerile and abrasive tone and style did not disentitle them to that protection;
(e) their content was not, on its own, such as to make them oppressive or such as to make it unreasonable for Mr Saunders to publish them; and
(f) Dr McNally's Article 8 interests were either not engaged at all or the weight to be given to those interest was significantly diminished by her own decision to put her history of mental ill-health into the public domain.
Mr Justice Chamberlain concluded that this was one of those cases where – as in the Duchess of Sussex's case – the court ought to "grasp the nettle" at this stage. “In my judgment the claim has no real prospect of success.”
He therefore granted summary judgment for Mr Saunders under CPR r. 24.2.