How could a case for damages brought against The Sun by constabulary clerk Esther Thomas have crucial relevance for SMS and e-mail marketing?
Topic: Selling on-line
Who: Esther Thomas and The Sun
Where: Lambeth County Court
When: March 2001
Judge Roger Cox of the Lambeth County Court was asked by The Sun’s publishers to strike out a claim brought against it by Esther Thomas, a civilian clerk working for the City of London police. Ms Thomas had sued The Sun for damages under the Protection from Harassment Act. The Act had been brought into force in 1997 primarily to protect the victims of stalkers, but the Act is drawn widely. Speech is covered and in essence there must only be a "course of conduct" which causes the victim alarm and distress.
Why was she suing? She had given evidence at a police disciplinary hearing that she had heard police officers making racist remarks about a Somali refugee. The evidence was corroborated by others, but the Sun reported the story under the headline "Beyond a joke-fury as police sarges are busted after refugee jest." Ms Thomas’ role and political correctness generally were criticised and the paper then published a series of readers’ letters attacking Ms Thomas. Then a further Sun article invited readers to contribute to a fund to enable one of the officers to pay off the fine imposed on him at the hearing. Having also received personal hate mail, Ms Thomas had had enough and sued The Sun under the 1997 Act. She said the series of published items constituted harassment and had caused her distress. The Judge refused to strike her claim out saying that under the Act harassment could include harassment by the press.
Why this matters:
The Sun is appealing the judgment, but if it stands, marketers should take heed. If published material can constitute harassment, then what about commercial e-mail or even SMS? Legal commentators have already suggested that the sending of repeated unsolicited commercial e-mails might well fall within this statute. Especially as the Human Rights Act now requires all courts to arrive at judgements consistent with basic rights such as the right to privacy, one can easily see a county court judge feeling constrained to lean in favour of a beleaguered e-mailee. Another reason to opt for opt-in!