School run-in – “weirdo” / “freak” libel claim going to trial after strike-out refused

Original post

In December 2018 the claimant, James Wilson, had a heated interaction outside his child’s primary school with the mother of one of the other children. The mother in question – referred to as “Mrs K”, as her own identity was not relevant to this claim – published a post on Facebook containing a picture of the claimant and her comments on the interaction.  

The post consisted of a photograph of the claimant, together with text calling him a “weirdo”, complaining about his aggressive request to turn her engine off in the drop-off zone and the fact that he took pictures of her car, her and her daughter, and describing him as a “freak” for taking pictures of children and his actions as “harassment”.

Re-posting

The circumstances in which the first defendant, James Mendelsohn, came upon the Facebook post are disputed. However, it is the claimant’s case that Mr Mendelsohn was alerted to the Facebook post by someone who asked him to let the claimant know about it. Later, in 2020, Mr Mendelsohn sent a screenshot of the Facebook post to the second defendant, Peter Newbon, via direct message on Twitter. Mr Newbon and the third defendant, Edward Cantor, then posted the screenshot of the Facebook post in a public Twitter thread during an online argument with the claimant.

Claims

The claimant brought claims in defamation, harassment, misuse of private information and data protection. At an earlier hearing on the “single meaning” of the Facebook post (for the purposes of the defamation claim), it was found to mean that: (a) the claimant objected to a mother leaving her car engine running while dropping her daughter off at junior school, banged on her car window, was very rude to her, and took pictures of her, her car and her daughter, which he retained on his phone; and (b) that conduct was unwarranted and worrying, was the conduct of a weirdo and a freak, and amounted to harassment.

The second defendant sadly died after proceedings were issued, and the claims against him were discontinued or abated.

Strike-out application

The first and third defendants made an application to strike outmost of the claimant’s claims on the following bases:

• ‍Harassment – The defendants submitted that the technical requirements of the Protection from Harassment Act 1997 (PFHA) were not and could not be made out, and that there was no real prospect that the claimant would demonstrate that the tweets were sufficiently oppressive and unacceptable as to amount to harassment.‍
• Libel – The defendants submitted that the threshold of "serious harm" could not be met.  ‍
• Data protection – The third defendant submitted that his tweet was part of his personal or household activities and so not within the scope of the General Data Protection Regulation (GDPR).‍
• Misuse of private information – The defendants submitted that the screenshot did not contain material in which the claimant could have had a reasonable expectation of privacy.

The defendants considered each of the harassment, libel and misuse claims to be an abuse of the principle established in Jameel,[2] i.e. that, for a defamation claim to be made, there must be a real and substantial tort within the jurisdiction (such as extensive local publication, for which the claimant has not already been vindicated by other means).

Decision

Harassment

The prohibition of harassment in section 1 of the PFHA states that a person must not pursue a “course of conduct” that amounts to harassment of another. That usually requires there to be conduct towards a person on at least two occasions, and the conduct must“cross the boundary” between that which is unattractive, even unreasonable, and conduct that is oppressive and unacceptable, and must be of an order that would sustain criminal liability under section 2 of the PFHA.  

In the case of the first defendant, the court found that the claimant could, arguably, meet those thresholds. The first defendant had published eight tweets during one conversation spanning several hours, and since there is no “single meaning” in harassment claims, the court could consider a wider range of meanings of the Facebook post – including that the claimant was a “weirdo” who posed a risk to children. The claimant adduced evidence that he had been approached by a man who accused him in a threatening tone of “being the weirdo who hung around the school taking photos of children”. Although the claimant had engaged in heated debate with the defendants on Twitter, the conversation took a more sinister tone after the screenshot was posted. The court ruled that the case against the first defendant had a real prospect of success, and the application for strike-out failed.

The third defendant had only tweeted the screenshot on one occasion with the text “define weird”. His other tweets did not cross the boundary, and so there was no realistic prospect that the claimant would establish a “course of conduct” for the purposes of the PFHA. The harassment claim against the third defendant was struck out.

Libel

The court declined to strike out the libel claims.  Master Davison considered that the single meaning accused the claimant of quasi-criminal conduct (i.e. harassment of Mrs K and her daughter). In his view, the allegation that the claimant took pictures of them (a statement of fact), and that this was the conduct of "a weirdo and a freak" (a statement of opinion), added a more troubling aspect. The claimant had pleaded a “respectable, inferential case on serious harm”, and the parties were waiting for disclosure of the analytical data relating to the scale of publication of the tweets (although there was enough to infer substantial publication, including to those who would know of the claimant in a professional context).

A curious aspect of the libel claim is that the claimant accused the first defendant of being liable as the author or editor of the late second defendant’s tweets under section 10 of the Defamation Act 2013. The court decided that this was better left for trial.

Data protection

The third defendant sought to strike out this aspect of the claim against him on the basis that the processing took place “in the course of a purely personal or household activity” and so with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities (recital 18 to the GDPR). The court found that the third defendant’s online activity had to be seen in the context of his Twitter bio, which read: "Used to be a lot of things. Now just raging against anti Semitism, populism and the silence of clever people." His tweet was an attack on a stranger with whom he had political differences, and not someone who was part of his household or circle of friends. This was accordingly not a matter for strike-out.

Misuse of private information

The court declined to strike out the misuse claims, as it did not consider that the claimant had “no real prospect” of demonstrating a reasonable expectation of privacy in the information contained in the Facebook post. Although it was a photograph of the claimant in a public place, accompanied by an account of a dispute that took place there, Master Davison considered that:

• The actions of the claimant described in the Facebook post amounted to the quasi-criminal activity of harassing Mrs K and her daughter. Information and/or purported information concerning past criminal behaviour “normally but not invariably”gives rise to a reasonable expectation of privacy, and Master Davison considered that this would arguably extend to quasi-criminal behaviour.
• It was clear from the context that the claimant was photographed outside his daughter’s school having just done the school run, and a parent would not normally expect to be photographed in such circumstances.
• According to the claimant, the first defendant was sent the Facebook post by someone who seemingly wanted to protect the claimant from the damaging consequences of the Facebook post and its dissemination. If so, the first defendant seemingly brought about that very damage by sending the Facebook post to the second defendant, and the Master found it necessary to assume for this application that it was sent in the knowledge that the second defendant might publish it.

Jameel abuse

The court noted that strike-outs for Jameel abuse are rare: they are an uphill battle from a purely legal standpoint, and the suspicion is that such applications are often tactical.

There are two central strands to Jameel abuse, which are: (a) the absence of any "real or substantial wrong"; and (b) the lack of "a tangible or legitimate benefit proportionate to the likely costs and use of court procedures".[3] The court could, however, usually use its powers to create a procedure in which a case could be decided in a proportionate way, especially where there is a real or substantial wrong.

The Jameel case itself was one in which publication was“minimal”, the damage to the claimant’s reputation was “insignificant” and there was no basis for an injunction to prevent future publication. None of those things could be said about this claim.  The defendants were seeking to defend the opinion that the claimant is a weirdo, a freak and a harasser, and so it was fair to consider that the claimant could gain worthwhile vindication through the proceedings and there was a wider public interest in the “fair resolution of legal disputes”. It would not have been right to strike out the claimant’s cases for Jameel abuse in the circumstances.

Multiple causes of action

Finally, the claimant had been criticised by the defendants for pleading multiple causes of action that were different ways of saying the same thing.  The judge agreed as a “general proposition”, but disagreed with “pruning” in this case.  He commented that the power to strike out claims under the Jameel principle or as part of general case management should be “exercised very sparingly”, given that litigants are “prima facie entitled to deploy the causes of action at their disposal”, and that there are “often legitimate reasons to do so”. In the judge’s view, one legitimate reason for keeping the multiple causes of action would be that the claimant might lose a libel claim if the defendants proved the truth of the allegations, but that would not be a complete answer to claims in harassment or misuse of private information.

Comment

Given the intensely personal nature of harassment, defamation, data-protection and privacy claims, it is unsurprising that defendants may sometimes believe that the claims against them are unwarranted or have no real prospect of success. Such defendants might be tempted to try to seek an early end to the proceedings. But as this judgment clearly demonstrates, it will not always be appropriate or in the interests of justice for the claims to be struck out without a proper trial.

In many ways, allegations of Jameel abuse seem comparable with allegations that a claim is a SLAPP, and it will be interesting to see whether similar jurisprudence would apply in those circumstances.

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Article written for Entertainment Law Review.