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Merlin has no magic wand to gag theme park safety campaigner

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A judge has backed the right of a critic of Merlin Entertainments’ theme park safety record to continue his “robust” campaign against the owners of Alton Towers and Chessington World of Adventures. The High Court judgment has asserted the obligation companies have to endure criticism even if it is upsetting or senior employees feel harassed by it.

Merlin Entertainments had sought a court injunction against a mass emailing and internet campaign on theme park safety by Dr Peter Cave and alleged he was harassing their staff. But Mrs Justice Laing said:

“An almost inevitable consequence of occupying a position of responsibility in a plc, the business of which affects many members of the public, is that, at times, a person will be exposed to robust, and occasionally upsetting, criticism. Its officers should, of course, be protected from real harassment. But they are not immune from criticism, even if that is misguided and intemperate.” (Para 56)

The judge took no view on the validity of Dr Cave’s criticisms but said that if they were unjust, the proper recourse for Merlin was the libel courts, not an injunction. “If such a claim succeeds, the level of damages will reflect the distress caused by the defamation.”

Dr Cave’s interest in theme park safety was prompted by the accident at Chessington in which Jessica Blake, 4, was seriously injured in 2012. Dr Cave and his company, Peer Egerton Limited (PEL) were hired to do a condition survey on the park after the accident.

Merlin insisted the survey remain confidential and that Merlin retain its copyright. It did not explain why it chose such a small firm for the work, the court heard. Work costing £4.6m was done following the report but PEL had sought through legal action in 2013 to prevent the park reopening until it was inspected by competent external engineers. “PEL also wanted its report to be returned to it and not to be used as a justification for not dealing properly with safety issues at the Park, and any third parties who had been told about the report to be told that the report was unreliable as it had been modified on Chessington’s instructions.” (Para 11) However, his case was rejected. Judge Sharp J on that occasion said Chessington had taken Dr Cave’s worries seriously and offered to let him examine the park to see work was being done. PEL’s conduct was “unreasonable to a high degree”.

Dr Cave in September and October 2013 started sending emails to local residents and businesses criticising Merlin and its offshoots as well as employees and making, according to Merlin, defamatory statements. He set up a website and sent further emails amounting, he said, to 80,000. He told the court that where an individual has asked not to be sent further emails, he has complied. There is also an e-petition set up this year.

Legal issues
Merlin claimed Dr Cave’s actions breached Section 1(1) of the Protection from Harassment Act 1997 (see below). Judge Laing said the word harassment had its ordinary meaning: “A person ought to know that conduct is harassment if a reasonable person, on the same information, would think that the course of conduct was, or amounted to, harassment.” Section 7(2) of the Act says it would “include alarming or causing the person distress”. She noted though that Lord Nicholls had said in Majrowski v Guy’s and St. Thomas’ NHS Trust (para 30) that “courts will have in mind that irritations, annoyances, and even a measure of upset, arise at times in everybody’s dealings with other people”.

Dr Cave claimed the protection of Article 10 of the European Convention, a right to “hold opinions and to receive and impart information and ideas without interference by a public authority”. The Protection from Harassment Act gives no clue as to how it is affected by Article 10. Judge Laing noted:

“Where the harassment which is alleged involves statements which a defendant will seek to justify at trial [as being true], there may be cases where an interim injunction will be appropriate. These are cases where such statements are part of the harassment which is relied on, but where that harassment has additional elements of oppression, persistence or unpleasantness, which are distinct from the content of the statements. An example might be a defendant who pursues an admitted adulterer through the streets for a lengthy period, shouting ‘You are an adulterer’ through a megaphone. The fact that the statement is true, and could and would be justified at trial, would not necessarily prevent the conduct from being harassment.” (Para 40)

But this is not the case where the “harassment” simply consists of repeated statements which the defendant would seek to justify at trial. Laing J said: “First, I have seen no evidence of any threatening communications. Second, ‘abusive’, in this context, is a troublingly vague word. Dr Cave’s emails do not contain words which are, in the common use of the term, abusive; rather, they contain, at times, strong criticism, which is quite a different thing.” (Para 42) She could see no reason, therefore, to order a halt to the emails subject to an undertaking he had already accepted not to criticise named individuals.

Merlin’s lawyers had informed Dr Cave that any further emails would be considered harassment “but the mere fact that a solicitor indicates that particular conduct, if repeated, will be seen as harassment, cannot, as a matter of law, convert otherwise innocuous conduct into harassment”. (Para 54)

Among the emails, for example, was one entitled “Only people without imagination take children to theme parks” sent to the Health and Safety Executive and at least 19,600 recipients. “The email referred to the risk that children can be stranded for hours on a broken-down ride, and said that fires are not an abnormal occurrence. Dr Cave referred to the condition report and to the fact that it revealed that a park had not been fit for purpose. Two rides had since been demolished, and about £4.2m spent to bring the park up to scratch. That was a ‘good result’, despite the fact that his company had been bankrupted.” (Para 81)

Laing J did not consider this email objectionable in tone or content except a reference to the chief executive with a claim he “deliberately allows rides to operate when they are not fit for purpose”. Laing said: “I do not consider, in the circumstances, that it arguably crosses the Majrowski line, or that a claim that it does is more likely than not to succeed” (the test for giving an injunction). Laing J concludes:

“I do not consider, in the circumstances of this case, that, in the light of all the factors I have mentioned, the series of mass emails to employees of the corporate Claimants is a course of conduct which amounts to harassment of those employees. Although this is not decisive, evidence of adverse effects on employees is very limited. They could all unsubscribe if they wished to. The emails were sent to their work email addresses. This might be annoying conduct, and it might well be irritating. But this is not conduct which is grave enough to be a crime. Such a claim is not arguable, still less is it more likely than not to succeed [ie at a potential hearing of the substantive issues rather than about an injunction].”

 Comment This case is a strong assertion of freedom of speech – and rather more so than the minimal protections offered by the judge in the famous Twitter joke trial. The issue in Merlin was described thus: “Campaigners may, in the course of their activities, annoy, irritate, and upset companies and individuals. To what extent should those activities be restrained by the civil courts, before the question whether they are justified has been decided?” (Para 3)

In the Twitter trial (Paul Chambers v DPP) Lord Judge simply found that the “joke” (about bombing Robin Hood airport if it didn’t sort out chaos caused by the bad weather) could not possibly have offended anyone and hence was not unlawful. He did not engage with the European Convention at all.

In the Merlin v Cave case, Dr Cave’s comments clearly could be deemed offensive – to the extent that the company and its staff felt it necessary to take legal action against them. But offensiveness was not enough. The allegations made by Dr Cave may not be true and they may offend, but they were about matters of public interest and so should not be stopped through injunction.

This is the case even though Mrs Justice Laing acknowledges that a defamation action would be problematic for Merlin, not least because Dr Cave would not be able to pay large-scale damages that might result if he is found to be publishing untrue claims

She notes: “Neither witness suggests that any employee has continued to receive emails despite asking to unsubscribe. This evidence does not persuade me that there is a serious question to be tried about the effect on employees generally, or that a claim that employees generally have been caused alarm, distress, or anxiety sufficient to found criminal liability is more likely than not to succeed. The evidence consists mostly of general assertions, and, to the extent that it does not, no reasonable person in possession of this information would think that the course of conduct at issue here amounted to harassment.”

This suggests a “reasonable person” test of alarm and distress rather than the subjective assertion of the alleged victims themselves. This is an important protection for free speech since the political agenda, certainly in the antisocial criminal sphere has been towards accepting people’s own evidence of distress. Were that to be the case in freedom of expression cases, free speech would take a serious blow.

We must hope, then, that Laing J’s judgment is upheld in any appeals. Clearly Merlin’s interests are simply to shut Dr Cave up. An actual libel trial would carry great risks, with a David and Goliath scenario attracting high public attention that could damage the company’s reputation more than any gains – as was found in the McDonalds “McLibel” case. Merlin would be wise to back off.

@alrich0660 

See also Judge-made law without the ECHR bits (Alrich Blog)

Cases: Merlin Entertainments et al v Cave (at Bailii.org: See Bailii on Facebook)
American Cyanamid Co v Ethicon Limited
See also: Brand v Berkie [2014] EWHC 2979 (QB)

Protection from Harassment Act
1 Prohibition of harassment.

(1) A person must not pursue a course of conduct—

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(1A) A person must not pursue a course of conduct —

(a) which involves harassment of two or more persons, and

(b) which he knows or ought to know involves harassment of those persons, and

(c) by which he intends to persuade any person (whether or not one of those mentioned above)—

(i) not to do something that he is entitled or required to do, or

(ii) to do something that he is not under any obligation to do.”;

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

(a) that it was pursued for the purpose of preventing or detecting crime,

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Note on Section 1(1A): “The claim pleaded in this case relies on harassment contrary to section 1(1) only. There is no claim based on section 1(1A). Section 1(1A) could have been relied on if the corporate Claimants thought that Dr Cave was harassing their officers, employees, and agents in order to put pressure on one or more of the corporate Claimants not to do something it was entitled to do, or to do something it was not obliged to do. This provision gives some protection to corporate claimants (among others) which are subjected to illegitimate pressure by the harassment of their employees. Corporate claimants are entitled to rely on section 1(1A) because section 7(5) does not require the “person” referred to in section 1(1A)(c) to be an individual. The reason for the limited application of the PHA to corporate claimants is, no doubt, the fact that while their employees can experience alarm, anxiety and distress, they cannot.” (Para 24)

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About alrich

Journalist and blogger on legal and financial/economics issues

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