|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Khan (formerly JMO) v Khan (formerly KTA)  EWHC 241 (QB) (15 February 2018)
Cite as:  EWHC 241 (QB)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
| Shakil Khan
- and -
The Defendant appeared in person and represented himself
Hearing date: 9 February 2018
Crown Copyright ©
The Honourable Mr Justice Nicklin :
Hearing in private
The parties and other central individuals
"He is the eyes and ears of the CEO, building relationships in countries two years before Spotify launches there. He is the advance party. Negotiations with the music industry were hard, although they were helped by starting with Sweden as a test case, since it is not one of the big markets internationally. If they had tried to first launch in the U.S. it would have never happened. Instead momentum was built by growing from Sweden to Norway to Finland to the UK... Influential backers such as Sean Parker also helped, an intro which Shak made as part of his role to make sure the product was seen by the right people. Sean was introduced to the product at a barbecue by someone who had early access. Suddenly Shak was getting long emails from Sean saying how great he thought Spotify was. At first Shak didn't know who he was, but when he found out he put him in contact with Daniel [Ek] and the relationship sprung from there.
Li Ka-shing of Horizon Ventures had been an early investor in Spotify and he suggested that Shak meet Nick d'Aloisio, founder of Summly (which was later acquired by Yahoo). Shak met him and was struck by the amazing IQ and EQ, and quickly became convinced the 16 year old was exceptional. When he gave Nick no nonsense feedback during their first meeting, rather than running away, Nick asked Shak to be his mentor and as a result they traveled together around the tech event circuit, including an introduction to Yahoo CEO Marissa Mayer at DLD Munich."
The alleged harassment
"On 2 May 2017 I became aware that my name was being used by the Defendant in connection with Carbaya. Several articles appeared in the press which suggested that I had co-founded or invested in Carbaya with the Defendant and that I was heavily involved in the initiative… In fact, I had nothing to do with Carbaya. I had previously introduced the Defendant to a variety of people, to try to give him a helping hand…"
"… I kid you not, when I say within the first three months of us moving [to Dagenham] I think I had to fight either on the way to school or on the way home from school every single day. I had to have some sort of fight with another kid older than me or my age who was different or saw me as being different. And to make it worse, I had a very strict father who, if I went home and I had had a fight – whether I had lost or whether I had won he didn't care – he was going to beat me up again so that was what life consisted of…"
And a little later, after giving an account of running away from home and sleeping rough, the Claimant said:
"… I did many things that I regretted, you know, I stole cars. I think the first time I got arrested was for stealing cars or car stereos cause, hey, at the time, you know, I had to survive, right. So, I got arrested. Not a proud thing, but that was the life I was living at the time; … you're trying to do survival and you do a lot of things which, if you now look back, you think 'what was I thinking?', but it happens. So on one side was sleeping rough on the streets; no food, begging for money, you know. On the other side, breaking into cars and stealing cars. These are all things which, 25-26 years ago seem like, 'hey, that seems a good idea'. You know, looking back at it now, quite a bad idea at the time so I hope that answers at least something… You then go… this is how life is gonna be and you then starting thinking, 'I don't have to live like this'. Maybe if I do something else. So, I got involved in the nightclub scene and with the nightclub scene comes organising great parties but the comes, you know, the consumption of illegal substances. And then you think, 'hey, I can make some money here'. So, you know, is that a time I look back at fondly? No. I had great times at that time, but… I also made some money smoking or actually smoked some drugs and, to pay for that, sold some drugs. That was the kind of life I led. It's interesting learning from those days and, I don't know, you know, not a period I'm happy with 'cause that ended quite badly and I got arrested and, you know, put in what's known as a young offenders, you know, when you're under 21 or whatever. There are certain places they send individuals to and I ended up going there and unfortunately that was when my father passed away on my 20th [birthday]… I was 20-years-old at the time and my father passed away with me incarcerated so, yeah, hey, do I regret things sometimes? Yeah, absolutely. If I could turn the clock back, would I? Absolutely. But the reality is, Om, I am who I am today probably because of those journeys."
"I have asked your client and Mr Ek to help me with a fundraise on commercial terms – and I find it totally absurd that when I am writing to you advising that your client's current strategy of taking legal action, where all the facts will be made public, could backfire spectacularly and could have far-reaching and potentially disastrous consequences for Spotify el al, is being likened to a blackmail attempt… Imagine for a moment if he took me to court, it will be his word against mine. For the sake of argument, our previous records would be brought out into the public domain. A journalist might seize on that, given your client's high profile, and might write a piece about that. Surely that is not the type of publicity Spotify needs at this stage – if ever… Nevertheless, as a gesture of goodwill, I am prepared to discuss this matter with him in private under the guidance of our mother over the weekend, as I had proposed earlier."
"Guys, Are we going to solve this problem as mature adults – or do we let it get ugly? Please let me know and we can sit and discuss this tomorrow. Otherwise, this could get VERY VERY MESSY, VERY VERY QUICKLY. Ball is in your courts – if I don't hear from either of you by 12PM tomorrow, then I will assume that you have thought about the potential consequences and are happy to let potentially severe damage take place to a number of people, their companies and reputations. I guess 'you make your bed, so you must lie in it'".
"As Shak's older brother, I cringed at the many lies that Shak told in the Podcast. Effectively, he painted a picture of extreme hardship whereby he single-handedly overcame life's challenges through his own hard work and efforts alone. The fact is that Shak is a serial criminal – and has been to prison many times… Most of what the Podcast says is difficult for people to verify as being true or not; so readers will have to either take mine or his words for it. Needless to say, his criminal record is available from the police and people can check it for themselves. His police record will be very different [than] the desperate homeless guy (from the Podcast) selling a joint so he could eat that day; it will be more of an organised criminal machine, owning and driving around in a brand new Range Rover carrying out various drug-related crimes and being caught it possession of £10,000s of illegally and immorally earned money."
The email continued with a very long narrative before concluding:
"The reason I am writing this letter to you is because as the CEO of a major company, I honestly thought you subjected yourself to a higher degree of personal standard and etiquette, and in fact in my previous email I had alluded to you to get your governance in order – and talk to Shak on this subject. However, you decided to endorse this fabricated Podcast – and give Shak's fairy tale the kind of credibility the rest of us can only dream of getting. Needless to say, if you didn't do the necessary due diligence on Shak's life/career/criminal record etc. then that in itself is a major talking point you may well have to address with your network/stakeholders in due course – as Shak's recent behaviour inevitably means that most of these things will come out in the open very soon…"
In context, that final comment appears to be a reference to the Claimant's decision to speak publicly about his criminal record in the Podcast.
"Once a company moves onto the market, journalists have a habit of digging up in the strangest of places to find some very bizarre answers that can leave companies a little bit embarrassed."
Mr Tomlinson QC relies upon this paragraph as the making of a further threat. However, although subsequently forwarded by Mr Ek to the Claimant, if there was a 'threat', it was being made to Mr Ek.
"Please [see] below – pretty self-explanatory.
Imagine what people would think if they found out that Daniel Ek's right hand man (who attends big meetings with him etc.) is a serial criminal that has been convicted for drug-dealing… Probably not the kind of information you would want in the public domain – especially with an impending IPO. Of course, you could go out and say to people that you didn't know any of this. Hopefully, people will give you the benefit of the doubt; but equally they might say if you didn't know any of this, then what else is there lurking in the background that you don't know about. Alternatively, you could of course say that you knew all of this, and let investors, VCs, journalists and your subscribers decide for themselves what else it is that you know but have kept hidden from the public at large."
"We have recently learned that Shakil Khan – Daniel Ek's right hand man and Board Advisor at Spotify has a big criminal record… From what we understand, Shakil's criminal activities includes drug selling… We are also led to believe that he has spent up to 5 years in prison…"
The email also forwarded the email exchange from 2012 regarding the ambassador role (see paragraph 25 above).
"Our client has established himself an unrivalled reputation amongst those in the international tech community. Your client's actions are designed to cause (and it is inevitable that our client will have suffered) serious harm to his reputation as a result and is likely to continue to do so…"
Under the heading "Harassment", the letter continued:
"This is not the first occasion [on] which your client has made defamatory and damaging statements about our client. More generally, over the past few months your client has actioned various communications to others about our client and continues to do so. We are instructed to request that your client refrain from disseminating or publishing further information of the nature complained of in this letter and making statements to third parties it intends to contact concerning our client (sic). If your client ignores this reasonable request, conduct of this nature is likely to harassment within the meaning of section 1 of the Protection from Harassment Act 1997 (in addition to giving rise to further claims for libel and/or breach of the DPA)."
The letter threatened the Defendant with an application for an injunction unless, by 26 June 2017, he gave an undertaking that "he will not further repeat the allegations he has made about our client or make similar statements concerning our client to any third party… under any circumstances, anonymously or otherwise". I note that the undertaking sought was limited to publications to third parties and not to the Claimant.
"Please see attached letter – which I will send out to Billboard and others on Monday, if this matter is not sorted out beforehand. Every day, this Podcast is out there, more and more people have the potential of hearing the false statements that it contains. So the sooner we resolve this, the better."
The attachment was a draft letter to Billboard. It complained only of the allegation in the Podcast that the Claimant had been beaten by his father.
"In consideration of Shakil Khan refraining from issuing an application for injunctive relief I now provide the following undertaking…
I, Tanweer Khan, undertake not to publish to any third party statements about Shakil Khan, which make reference to, or rely upon, any convictions of Shakil Khan which are 'spent' under the Rehabilitation of Offenders Act…"
"Before our client can consider further discussion with yours or amendments to the podcast he requires the following:
1. A list of all recipients of the 9 July Email and any similar emails sent by your client.
2. Your client's agreement to send a retraction and apology to those recipients in agreed terms."
"What about if investors at Spotify, particularly, with an impending listing were to find out that Shak has been lying and start investigating further. They would have a genuine cause for concern regarding Daniel's integrity – and that would not bode well for Spotify".
"But of course, it is well within his rights to do so. And of course, I have the right to correct it in the public domain myself and clear my father's name... Given Shak is a senior and significant individual with Spotify, Spotify are by law (US Securities Act 1933), required to provide full details about Shak's background so that the reasonable investor can make an informed decision about whether to invest or not. Whilst the SEC due diligence definition of legal proceedings date back 10 years before the securities are launched on a recognised market, any conviction that resulted in a custodial sentence must always be disclosed irrespective of whether they are spent or not."
The email concluded:
"Please don't treat this email as a threat. It is just friendly advice, outlining the legal framework and my obligations."
"I fear that given the claimant's previous track record, Spotify's secretive listing process, the claimant's financial problems, his amending of his online profiles, and producing a fabricated interview in the podcast will lead to investors being deprived of the full information mix – and they could lose billions of dollars very quickly, especially given that Spotify is operating in a market where Apple Inc is a huge competitor with a much larger portfolio of business… Therefore, unless the claimant and/or Spotify make full disclosure in the public domain, investors including pension funds stand to lose up to US$22bn [which the Defendant says is Spotify's current valuation]. As a financial market participant, it is my moral, legal and fiduciary responsibility to warn clients about investing in Spotify. However, I will need to provide them with a true and correct reason…"
"… I am still happy to be convinced by you all that this is not material nor deliberate. However, please do bear in mind that with the press speculating that Spotify might do an IPO as soon as Q4 2017, then for good order sake, I must think of investor protection and such come October 1st 2017. I will formally start collating all the information together for my SEC lawyers so that they can ensure investors are protected as soon as Spotify goes public."
Mr Tomlinson QC submits that this is a further threat. I am not convinced that a threat emerges from this email.
"This is going to get very interesting. To think I was asking you guys to help me raise a tiny amount (a few hundred thousand pound), but instead your contrived behaviour may lead to hundreds of millions of pounds of losses to investors".
"My name is Horacio Gutierrez and I am the General Counsel of Spotify. I write to ask for a call with you as soon as possible to discuss the multiple emails you have sent Spotify and a number of third parties. Up until this point we have patiently refrained from taking any steps regarding what we perceive as unfounded claims and misguided threats you make in those emails, but our patience has run out and I have been instructed to act unless the incessant unwanted contacts stop immediately. I'm hoping we can avoid the costly and protracted actions that will follow, including those involving your employer, so and (sic) I'm reaching out to you in good faith to discuss before we act…"
"You guys will end up in prison for sure, for your deliberate attempts to lie, make false and misleading statements and using deceptive devices… And the thing is you know this too – otherwise you would have taken me to court a long time ago as you had threatened."
The language being used by the Defendant has certainly become by this stage more strident. But I also note that there is reference in this email to events about which I have no evidence.
"… you have in writing threatened me and suggested to take legal action against my employer, confirmed that the Podcast is fictitious but only a private apology is available and what the reason for doing the podcast in the first place was."
There is reference to correspondence with Baker McKenzie who I understand were solicitors for Spotify at some point. Again, I have not seen that.
The Claimant's evidence as to the impact of the alleged harassment
i) that he "found [the] allegation that I represent a risk and have covered up information to the detriment of Spotify to be especially distressing given my relationship with Daniel Ek";
ii) that he is "alarmed that the Defendant has sent numerous emails containing derogatory and highly damaging remarks about me to members of the Spotify Board";
iii) that the threats to go to the press and the US Securities and Exchange Commission "have caused me great distress and anxiety";
iv) that the Defendant's email campaign has caused him "considerable anxiety" for 9 months and will continue to have a negative effect on his health and well-being "until his emails are curtailed"; and
v) that it has caused great upset to his girlfriend who sought medical treatment as a result of the "latest episode of emails", and that the campaign is having an effect on their relationship.
40. I am particularly distressed by the emails which the Defendant sends to third parties and the fact the range of people to whom the emails are being sent is increasing. The Defendant's decision to email more and more people about me means that I am living in a constant state of torment fearing news of who the Defendant has decided to contact next.
41. Many of the recipients of these emails people (sic) are high-profile individuals whom I know or may wish to get to know in the context of my professional life. They are people whose impression of me is important to me. The fact that my brother, who is necessarily linked to me, is sending numerous emails referring to me is causing me great anxiety and embarrassment. I fear that the Defendant's stream of allegations and negative comments about me is harming my standing in the business world.
42. If the Defendant is permitted to continue to publish damaging statements about me, as he has and continues to threaten to do, the effect on my reputation may be grave. I am serial investor in tech companies and the impact on my reputation will undoubtedly have a negative effect on my ability to engage in the industry and invest. I am finding the constant fear that this will happen extremely upsetting.
Terms of the injunction that are sought
"Until the trial of this action or further Order of the Court in the meantime, the Defendant must not:
(a) Pursue a course of conduct which amounts to harassment of the Claimant contrary to the Protection from Harassment Act 1997 and, in particular, will not do any of the following…
(i) Communicate with and/or contact and/or attempt to contact the Claimant directly or indirectly, including but not limited to speaking to him, approaching him, telephoning (with or without speaking), writing, sending messages electronically (including through email, WhatsApp or any other messaging service or through facsimile or through any other written form of communication) or in any other way whatsoever.
(ii) Communicate with any other person or entity about the Claimant, including but not limited to:
(a) Sending emails or any other form of electronic messages relating to or referring to the Claimant (either by name or through any other information capable of identifying or referring to the Claimant) to any person, or posting actual or purported information concerning the Claimant on Facebook, Twitter or any website or any blog, or on any social media site.
(b) Sending postal correspondence relating or referring to the Claimant (either by name or through any other information capable of identifying or referring to the Claimant) or any other person.
SAVE THAT nothing in this sub-paragraph shall prevent the Defendant:
(1) from disclosing actual or purported information about the Claimant for purely private and personal purposes and in confidence (that is, on the express understanding that there will be no further disclosure of the information);
(2) from communicating with his professional advisers;
(3) from disclosing any information concerning the Claimant not previously communicated by him to regulators or law enforcement agencies or from responding to any questions from such regulators or agencies about the Claimant."
The Order also included an injunction, in standard form, to enforce the anonymity Order.
Interim injunctions: s.12 Human Rights Act 1998
"No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."
"The test that has to be satisfied by the claimant on any application for an injunction to restrain the exercise of free speech before trial is that he is 'likely to establish that publication should not be allowed': [s.12(3)]. This normally means that success at trial must be shown to be more likely than not: Cream Holdings… In some cases it may be just to grant an injunction where the prospects of success fall short of this standard; for instance, if the damage that might be caused is particularly severe, the court will be justified in granting an injunction if the prospects of success are sufficiently favourable to justify an order in the particular circumstances of the case: see Cream at , . But ordinarily a claimant must show that he will probably succeed at trial, and the court will have to form a view of the merits on the evidence available to it at the time of the interim application."
Harassment injunctions: the law
"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." ?
 … s.7(2) of the 1997 Act, which provides that 'references to harassing a person include alarming the person or causing the person distress'. This is not a definition of the tort. It is merely guidance as to one element of it. Nor is it an exhaustive statement of the consequences that harassment may involve. The Supreme Court gave further guidance in Hayes -v- Willoughby  UKSC 17  1 WLR 935, where Lord Sumption SC said at  that harassment is '… an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress.'
 As these words suggest, behaviour must reach a certain level of seriousness before it amounts to harassment within the scope of PHA s.1. That is not least because the 1997 Act creates both a tort and, by s.2, a crime of harassment. The authoritative exposition of this point is that of Lord Nicholls in Majrowski -v- Guy's and St Thomas's NHS Trust  1 AC 224 :'[Where] the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.'
 There must, therefore, be conduct on at least two occasions which is, from an objective standpoint, calculated to cause alarm or distress and oppressive, and unacceptable to such a degree that it would sustain criminal liability: see Dowson -v- Chief Constable of Northumbria Police  EWHC 2612 (QB)  (Simon J).
 The reference to an 'objective standpoint' is important, not least when it comes to cases such as the present, where the complaint is of harassment by publication. In any such case the Court must be alive to the fact that the claim engages Article 10 of the Convention and, as a result, the Court's duties under ss.2, 3, 6 and 12 of the Human Rights Act 1998. The statute must be interpreted and applied compatibly with the right to freedom of expression, which must be given its due importance. As Tugendhat J observed in Trimingham -v- Associated Newspapers Ltd  EWHC 1296 (QB) at : '[i]t would be a serious interference with freedom of expression if those wishing to express their own views could be silenced by, or threatened with, claims for harassment based on subjective claims by individuals that they feel offended or insulted' (emphasis added).
 The Court's assessment of whether conduct crosses "the boundary from the regrettable to the unacceptable" needs to be conducted with care in cases such as this, for several well-established reasons. Among them are that freedom of expression(1) '… is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country':R -v- Secretary of State for the Home Department, ex p Simms  2 AC 115, 126 (Lord Steyn)(2) '.. is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb':Nilsen and Johnsen -v- Norway (1999) 30 EHRR 878 .(3) '… is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly':Nilsen and Johnsen (ibid).
 In Nilsen the Court set out the well-known three part test for justification of an interference with a fundamental right. 'The test of "necessity in a democratic society" requires the Court to determine whether the "interference" corresponded to a "pressing social need", whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient."…
 When applying these principles it is necessary to have in mind not only that the rights under Articles 10(1) and 11(1) are qualified rights but also that in this, as in many publication cases, the countervailing rights to be considered appear to include the fundamental right to respect for private and family life, under Article 8 of the Convention. The gravity of the imputations against [the Claimant] and their consequences for him mean that this right is engaged. It is necessary to assess the gravity of any interference and whether such interference is justified under Article 8(2). That task itself involves the application of the three part test. The resolution of any conflict between Article 8 and Articles 10 and 11 is achieved through the "ultimate balancing test" referred to in In re S (A Child)  1 AC 593.
 Harassment can take different forms. Where the harassment which is alleged involves statements which a defendant will seek to justify at trial, 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, or prevent a court from restraining it at an interlocutory stage... (emphasis added)
 This means that the real question is whether the conduct complained of has extra elements of oppression, persistence and unpleasantness and therefore crosses the line referred to in the cases. There may be a further question, which is whether the content of the statements can be distinguished from their mode of delivery... [T]he fact that conduct consists of, or includes, the making and repetition of statements which a defendant will seek to justify at trial means that a court must scrutinise very carefully claims that that line has been crossed in any particular case, and ensure that any relief sought, while restraining objectionable conduct, goes no further than is absolutely necessary in interfering with article 10 rights...
 … In Holley -v- Smyth  QB 727 (CA) the defamation rule was held to preclude the grant of an injunction to restrain an alleged libel, even though the claimant asserted not only that the allegations were false but also that the defendant's motive for the threatened publication was blackmail. Because the claimant could not satisfy the court that the allegations were plainly untrue the Court decided, by a majority, that the injunction should be discharged.
 As a matter of legal policy, the Court applies the more demanding defamation rule if it detects 'cause of action shopping'. By that I mean that the rule will be applied in cases where, although another cause of action is relied on, the Court concludes that the claimant's true purpose is to prevent damage to reputation. The policy was described in this way in the breach of confidence case, McKennitt -v- Ash  QB 73  (Buxton LJ):"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."
 The authorities do not reveal any touchstone or any very clear criteria by which the Court is to discern whether a claimant is engaging in abuse of this kind. A claimant who engages specialist Counsel and expressly relies on defamation as a basis for his injunction is not an obvious candidate. But [Counsel for the Claimant] fairly recognises that his client is concerned about reputation, and has said so clearly in his evidence. He acknowledges that the Court might conclude that the defamation rule applies, whichever cause of action he advances.
- In Service Corporation International Plc -v- Channel Four Television Corporation  EMLR 83, the claimant company sought an interim injunction to restrain the broadcast of a television programme. It had originally complained that the publication would be defamatory, but by the time of the application for the interim injunction it had abandoned that claim in favour of other causes of action. Refusing the injunction, and applying the defamation rule, Lightman J held [pp.89-90]:
"… [The defamation rule] does not extend to claims based on other causes of action despite the fact that a claim in defamation might also have been brought, but if the claim based on some other cause of action is in reality a claim brought to protect the plaintiffs' reputation and the reliance on the other cause of action is merely a device to circumvent the rule, the overriding need to protect freedom of speech requires that the same rule be applied: see Microdata -v- Rivendale  FSR 681 and Gulf Oil -v- Page  1 Ch 327 at 334. I have great difficulty in seeing the three alternative claims made in this case as other than attempts to circumvent the rule and to seek protection for the plaintiffs' reputation."
i) I do not consider that either individually or collectively these emails have crossed the line from unattractive, even unreasonable, to oppressive and unacceptable. I do not doubt that the Claimant is irritated by the persistence of the Defendant and that the emails are causing him distress and annoyance. But that distress is largely caused by the content of the emails – and the fact they are being sent to third parties - rather than the manner (and frequency) of delivery. As to that latter point, the Claimant is an experienced businessman. The receipt of repeated complaints from an individual could hardly be regarded as unusual; in public life it might be regarded as an occupational hazard for those that occupy a role of any prominence. Here, the Claimant can exercise a degree of self-help by simply deleting the emails he receives from his brother (if he wants, without reading them). He can ask those who have been forwarding his brother's emails to him, not to do so. It is a striking feature of this case that only a fraction of the emails complained of have addressed directly to the Claimant rather than his being copied in to emails addressed to others. This is not a case where the respondent is protesting outside the applicant's business or residential premises and so cannot be avoided. I accept that there may be an element of distress caused by continuing to wonder whether the Defendant is continuing to send emails, what they contain and to whom, but this is nowhere near the level of oppression that requires or justifies a court injunction. So far, the Defendant has been reasonably consistent. His complaints – although sometimes lengthy – essentially concentrate on the same issue. This is not a person whose allegations change or become more extravagant or serious as time goes on (which can be a hallmark of some harassment cases).
ii) Some of the emails contain language suggestive of threats. But these 'threats' lack clarity and consistence and, over 9 months, they have never been acted upon. The essential underlying theme of the emails is to say to the Claimant and Spotify: "you make this disclosure to the market and the regulators or I will". That is not blackmail. It lacks the element of a demand for something to which the person is not entitled, typically money (or some other benefit). Spotify can decide for itself whether disclosure is required. If it is, the Defendant's complaint may have played a part in getting it to recognise that fact. If it is not, the simple answer to the Defendant is to tell him that no disclosure is required, that he is welcome to take a different view and that he is free to report the matter to the regulator himself.
iii) I do not find the Claimant's evidence as to the impact on him to go much beyond annoyance and distress. The evidence strongly suggests that the Claimant's distress is caused by what the Defendant has said to third parties not the manner in which he has said it. There is no evidence that the Claimant is having to confront third parties who are raising the Defendant's complaints with him and, even if there were, that it has reached a level that could be properly regarded as oppressive. At the moment, the people to whom the Defendant is sending his emails fall within a fairly narrow group. The selection is clearly deliberate; it is not indiscriminate. They are people connected with Spotify whom the Defendant clearly believes would have an interest in (at least) investigating the matters that he has raised.
iv) I consider that the Defendant may well have an arguable defence that, in the particular circumstances, the pursuit of the course of conduct is reasonable. Ultimately, if advanced, that would be a matter to be determined at trial. But, at this stage, the very clear impression given by the correspondence is that the Claimant and Spotify are ignoring the Defendant's complaint (see paragraphs 44-47 above). A strategy of non-engagement may be one way to deal with unwanted emails, but the failure to deal with points contained in the correspondence may well come with the risk that the sender remains persistent in his efforts to obtain a response. Mr Tomlinson says that the Defendant should have sent one letter of complaint to Spotify and left it at that. Some people might be content with that approach to complaints. But that is not the point. It is not for the Court to mandate that a complaint should be made once, perhaps twice, but that further complaints after that run the risk of being characterised as harassment. Every case will depend on its facts. Equally it is not for Mr Tomlinson (or the Claimant) to draw up an 'approved' list of recipients for the Defendant's complaint (limited to regulators and law enforcement agencies). In the exercise of his right of freedom of expression, it is for the Defendant (not the Court at the interim stage) to decide how widely he decides to publish his allegations, how often and in what terms:"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having" (per Sedley LJ in Redmond-Bate -v- DPP  HRLR 249 ).
v) I can see no basis – and certainly not one justifying an injunction to prevent alleged harassment – upon which it would be proper to restrain the Defendant (if he wanted to) from publishing his allegations in a newspaper, online, on the radio or television, or at Speakers' Corner. If he defames the Claimant in the process, then he will be liable to answer under the law of defamation for such publications. On this application, the Claimant has not attempted to demonstrate, on the evidence, that the Defendant is publishing anything that is false. The emails contain frequent expression of the Defendant's opinion on the behaviour of the Claimant and Spotify, but that too is an important dimension of the Defendant's right of freedom of expression. There has been no suggestion – nor on the evidence could there be – that the Defendant does not believe his allegations to be true.
i) The Claimant's solicitors' letters of 21 June 2017 (paragraph 28 above) and 11 July 2017 (paragraph 32 above) appear to me to complaining mainly about reputational harm. Reference is made both to alleged breaches of the Data Protection Act 1998 and alleged harassment, but these are simply being used as vehicles – together with a threatened defamation claim – to prevent further publication of the Defendant's allegations. In this respect, I attach importance to the fact that the undertaking sought in the letter of 21 June 2017 was to prevent publication to third parties. In harassment, the claim is primarily directed at stopping the Defendant from emailing or harassing the complainant. In the letter of 11 July 2017, the Claimant sought a retraction and apology which indicates clearly that the paramount concern was damage to reputation.
ii) That correspondence dates from over 6 months ago, but paragraphs 40-42 of the Claimant's witness statement (set out in paragraph 52 above) concentrate mainly (if not exclusively) on the alleged damage to his reputation and the distress that has been caused to him by this. Of course, there will be cases in which an element of distress comes from the fear of the impact of the harassing acts on a claimant's reputation, but that will usually be a subsidiary concern to the main impact of the harassing acts. Here, I am satisfied that reputational harm is the principal complaint. The Claimant's witness statement says little at all about the distress caused to him as a result of receiving the Defendant's emails personally; the focus is almost entirely upon the distress he feels at the emails going to third parties.
"If no injunction is granted, and if the Defendant does in the future commit an act amounting to harassment, then he will face a remedy in damages for what he has done. There may then also be a further application for an injunction on the basis of evidence as it is at that time. I do not say that damages are an adequate remedy for harassment that has occurred, although it is in some cases the only remedy available. But the fact that damages could and would be awarded if the Defendant were to commit such an act in the future seems to be to be sufficient protection for the Claimant's interests as matters stand today. In any event, and whether or not the [Defendant's behaviour was harassment], it does not follow that an injunction is a necessary or proportionate measure as at the date of the hearing. In my judgment, for the court to grant an injunction against the Defendant in the circumstances of the present case, as they appear on the evidence before the court today, would be excessive and disproportionate."
The same applies equally to this case.
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.
"… the exceptions [to the principle of open justice] are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done . . . As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration . . . I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made."
Earl Loreburn said (p. 446):
"… in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the court."
"It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule…
There can however be situations where a party or witness can reasonably require protection. In prosecutions for rape and blackmail, it is well established that the victim can be entitled to protection. Outside the well established cases where anonymity is provided, the reasonableness of the claim for protection is important. Although the foundation of the exceptions is the need to avoid frustrating the ability of the courts to do justice, a party cannot be allowed to achieve anonymity by insisting upon it as a condition for being involved in the proceedings irrespective of whether the demand is reasonable. There must be some objective foundation for the claim which is being made."
"… Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
This is wording similar to Articles 8(2) and 10(2), both of which qualify the rights of privacy and freedom of expression respectively. The result is that, when in conflict, the tension is to be resolved by applying the familiar "ultimate balancing test" from In re S  1 AC 593. The decision whether to grant anonymity is not a matter of discretion; it is a matter of weighing up the competing Convention rights: AMM -v- HXW  EWHC 2457 (QB) -.
"Anonymity orders are granted in the criminal and civil courts in cases involving children, and in other circumstances where the public interest in publishing a report of the proceedings which identifies a party (or the normally reportable details) does not justify the resulting curtailment of the rights of the claimant (or others) to respect for their private lives: JIH -v- News Group Newspapers Ltd  1 WLR 1645…"
See also Secretary of State for the Home Department -v- AP (No.2)  1 WLR 1652  per Lord Rodger
(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the article 10 rights of the public at large.
(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.
(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.
A hearing, or any part of it, may be in private if—
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice."
"The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c), namely: …
(9) proceedings brought under … the Protection from Harassment Act 1997…"
Submissions on anonymity
Decision on anonymity
i) There is simply no justification for a blanket order. This is not a privacy claim; it is a claim for harassment. It is not in the category of 'blackmail harassment' (see paragraph 90 above). The only 'threat' made by the Defendant is to disclose details of the Claimant's previous convictions and the Claimant has himself generally made these public in the last year. The administration of justice will not be frustrated by the Claimant being identified and the proceedings taking place in open court.
ii) The Claimant has to accept being identified as a party in these proceedings as any other litigant would (JIH paragraph (6)).
iii) Insofar as private or confidential information has been raised in the evidence and at the hearing, that may justify a more limited and targeted order withholding that information from proceedings in open court together with a reporting restriction under s.11 (JIH paragraph (4)). In this case, as the hearing of the injunction application took place in private, the detail of the Claimant's previous convictions and the medical information have not been mentioned in open court and I have deliberately made no reference to these details in this judgment.