In December 2018, the mother of a child at a primary school posted the following on Facebook:

“Does anyone have any idea who this weirdo is, think he is from the Birkby area in Huddersfield, I was dropping my daughter off at … Junior school this morning, he has approached me by banging very hard on my car window asking me to turn my car engine off, I replied i am in the drop off zone its raining heavily the windscreen is getting steamed up, i was literally park up for a few minutes, this weirdo then had the nerve to take pictures of my car, of me, and my Daughter, he was very rude and i took a picture of him so that i could inform other parents and the school that this freak takes kids pictures. This is harassment he has my Daughters picture in his phone, I am fuming, I want to find out who he is, please share and help me find out who he is. Thanks”.

A photo of James Wilson, who was the claimant in this libel action, accompanied the text.

In August 2020, the Facebook post was republished as part of a Twitter thread to which Mr Wilson had become a party. The thread concerned antisemitism, the state of Israel and criticism of Israel by the left, and it began with Peter Newbon, the second defendant in these proceedings, “quote-tweeting” a tweet on this topic. A Twitter “spat” ensued in which Dr Newbon and others castigated Mr Wilson’s stance on the subject. At a certain point, Dr Newbon posted the screenshot of the Facebook post, with the caption: “I see yer Da is doing ‘community watch’ again”. He posted it a further three times with the messages: “this freak takes pictures of kids apparently”; “indeed. Quite so. As when this mother described the man who allegedly photographed her children as a ‘freak’ – for instance. One much (sic) uphold her right to free expression in what sounds like a situation of harassment”; and “Ranting at people is so unattractive, don’t you think, eh?”.

As part of a separate Twitter thread, which began shortly after with the words: “You do appear to follow Jews around the internet with the sole purpose of poking them”, the third defendant, Edward Cantor, posted a screenshot of the Facebook post and the following words: “Define weird”. This Tweet remained live until April 2021.

Dr Newbon had acquired the screenshot of the Facebook post from the first defendant, James Mendelsohn, who had taken a screenshot of the post before it was removed from Facebook. This thread was couched in derogatory language and included Mr Mendelsohn telling Dr Newbon about a workplace complaint that had been made against Mr Wilson when Mr Wilson and Mr Mendelsohn had worked together as lecturers at the University of Huddersfield.

Mr Wilson issued proceedings for libel, harassment, misuse of private information and breach of data protection law.

Dr Newbon died in January 2022. Therefore, Mr Wilson’s defamation claim against him abated. His claims for misuse of private information, harassment and breach of data protection rights survived against Dr Newbon’s estate but were stayed.

At a preliminary issues trial, the natural and ordinary meaning of the Facebook post was found to be:

“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. That conduct was unwarranted and worrying, was the conduct of a weirdo and a freak, and amounted to harassment.”

(2) The statement contained in the first sentence is a statement of fact.

(3) The statement contained in the second sentence is a statement of opinion.

(4) The basis of that statement of opinion is clearly indicated and consists of the sequence of events which is described in that statement of fact.

(5) Both statements are defamatory at common law”.

The defendants filed Defences that sought to justify the defamatory statements on the basis that, insofar as they were statements of fact, they were true or substantially true and insofar as they were opinion, an honest person could have held that opinion based on facts that existed at the time.

The defendants then applied to strike out/grant reverse summary judgment in their favour on most Mr Wilson’s claims.

Harassment

In respect of the harassment claim against Mr Mendelsohn, Master Davison found that because there were eight Tweets, all of which either included or referred to the Facebook post screenshot, it was difficult to conclude that there had not been “conduct on at least two occasions in relation to that person” under s 7(3)(a) of the Protection from Harassment Act 1997. Although the Tweets were part of one conversation, the conversation spanned two days. The fact that there were eight Tweets also satisfied the requirement that the “conduct” was “persistent”.

Master Davison also concluded that the Tweets had arguably “crossed the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable”. Given that the single meaning rule does not apply to harassment claims, the court could consider the range of available meanings, which included that Mr Wilson was a “weirdo” who posed a risk to children. Accordingly, Mr Wilson had a claim in harassment against Mr Mendelsohn that had a real prospect of success.

As for the claim against Mr Cantor, because he had only posted the Facebook screenshot, accompanied by the words “Define weird” once, there was no “course of conduct”. The fact that the Tweet remained online for nine months before being taken down did not, in Master Davison’s view, mean that distress and alarm would be continuous. Accordingly, this element of the claim was dismissed.

Defamation

The defendants challenged whether the publications had caused or were likely to cause serious harm to Mr Wilson’s reputation.

Master Davison said that the defamatory meaning that had already been found amounted to a finding that what was alleged was quasi-criminal conduct, i.e. harassment of the mother and her daughter. The statement of opinion that taking pictures of them was the conduct of “a weirdo and a freak” added a more troubling aspect to the tweet. Accordingly, serious reputational harm was at least a likely consequence. In fact, Mr Wilson was threatened or harassed on his way to and from the school following publication of the Facebook post. Although the Twitter spat, which took place 18 months after the Facebook post was published, had a different context, as soon as the screenshot was posted within the thread, the character of the spat changed and the context no longer served to lessen the gravity of what was alleged. There was still, therefore, a respectable inferential case of serious harm. Further, the number of followers that Dr Newbon and Mr Cantor had meant that it was reasonable to infer substantial publication. In Master Davison’s view, a fuller investigation into the facts was needed.

In terms of the libel claim against Mr Mendelsohn, the defendants said that he could not be liable as he was not the “author” of Dr Newbon’s tweets under s 1 of the Defamation Act 2013. However, Master Davison declined to decide whether Mr Mendelsohn was an “author” or an “editor” by virtue of having made the screenshot of the Facebook post that he had sent to Dr Newbon. In Master Davison’s view, at first blush, it was arguable and the point, which was of potentially wide-reaching importance, was better left for trial.

Data protection

Mr Cantor also sought striking out/reverse summary judgment in the claim against him under Article 82 of the GDPR for the unlawful processing of Mr Wilson’s personal data in the form of the Facebook post. Mr Cantor relied on Recital 18, which states that the GDPR does not apply to the processing of personal data by someone “in the course of a purely personal or household activity” and “with no connection to a professional or commercial activity”. It goes on to suggest that “social networking” is included in this. Master Davison found, however, that the offending tweet was an attack by Mr Cantor on someone who was not part of his household or of a circle of friends on Facebook, but rather, a stranger with whom he had political differences. Further, Mr Cantor provided no evidence to support his contention that this was a purely personal or household activity. Accordingly, Master Davison found that this was plainly a matter for trial and the application failed.

Misuse of private information

The issue here was whether the screenshot of the Facebook Post that Dr Newbon had tweeted contained information in which Mr Wilson had a reasonable expectation of privacy.

Master Davison found that, although it was accurate to describe the post as a picture of Mr Wilson in a public place together with an account of a dispute that had just taken place between him and the mother, there were some added features:

• the actions of Mr Wilson that the Facebook post described amounted to the quasi-criminal activity of harassment;
• the location was outside the school that Mr Wilson’s daughter attended; and
• Mr Wilson said that Mr Mendelsohn had been alerted to the post by a former student who had emailed him “to see if he could get in touch with [Mr Wilson] to let [him] know about it”, the clear inference being that the student’s objective was to protect Mr Wilson from the damaging consequences of the post and its further dissemination. If so, Mr Mendelsohn’s sending it to Dr Newbon in the knowledge (Master Davison assumed) that he might publish it, was to do the very thing that the student was trying by her actions to avoid.

Therefore, Master Davison was not persuaded that Mr Wilson had no real prospect of showing a reasonable expectation of privacy.

Jameel abuse

Finally, Master Davison rejected the defendants’ contention that all claims, other than the GDPR claim against Mr Cantor, should be struck out for Jameel abuse. Master Davison noted that a properly pleaded defamation claim such as this is rarely struck out on this ground. Further, this was not a case where Mr Wilson could gain no vindication worth having.

Accordingly, the application failed, save for the harassment claim against Mr Cantor. (James Wilson v James Mendelsohn [2023] EWHC 231 (KB) (9 February 2023) — to read the judgment in full, click here).