Ms Henderson [‘H’] had been employed in a school in the local authority’s area in a supporting role. She was dismissed for gross misconduct having accessed and viewed emails with explicit pornographic content. The school later became aware that she had secured a job working in another school and wrote to the school setting out that she had been dismissed for gross misconduct involving sexual harassment through the possession and display of explicit pornographic works at school. H issued proceedings for libel on the basis that it was defamatory or untrue to allege she was involved in sexual harassment as her activities had not involved unwilling third parties who felt harassed or offended by what she had done. She later withdrew that application against the local authority, but the second defendant ‘LT’ applied for summary judgment arguing that the claim had no real prospect of success on the basis that they acted in pursuance of the duty set out in regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 or, failing that, from a social or moral duty. At the hearing LT accepted that H’s actions did not amount to sexual harassment, although the Judge did make the point that the issues only arose because one member of staff had seen the images and was offended which could in itself justify the allegation of sexual harassment. Instead LT sought to defend its actions of the allegations on the basis that they had been published on an occasion of qualified privilege without any malice. H conceded at the hearing that the publication was one of qualified privilege and on this basis the court considered whether she could demonstrate malice.
Applying the ratio in Telnikoff v Matusevitch (1991) and Alexander v Arts Council of Wales (2001) the Court found that to demonstrate malice one must prove facts which were more consistent with the presence of malice than with its absence. It could not be something that was merely neutral or equivocal but rather someone that would suggest to a jury that the person making the statement was dishonest or was motivated by a desire to injure the claimant. In this instance LT were acting out of a misunderstanding of the law. They understood that in some instances the viewing of pornography in the workplace may amount to harassment and so had included this allegation within the notification sent to her subsequent employers. This was not a case where it could be said that they were acting out of malice and, because there was no real prospect of defeating the defence of qualified privilege, the action was dismissed.