May 15, 2023
Trans activist Stephanie Hayden issued proceedings against the Family Education Trust (FET) in relation to a quote tweet it posted in October 2022 (the Tweet) following the arrest of Caroline Farrow on suspicion of harassment and malicious communications, which had occurred as a result of a complaint made to the police by Ms Hayden. The Tweet was deleted within 40 minutes of being posted following the intervention of another Twitter user, who suggested that it might be in contempt of court.
Ms Hayden claimed that the Tweet was defamatory of her. It did not name her, but she nevertheless said it would have been understood to refer to her, as it was hyperlinked to the original tweet, posted by Dr Louise Moody, who had previously been sued by Ms Hayden and whose account contained images of and reference to Ms Hayden. Ms Hayden also said that because Ms Farrow, who had also previously been sued by Ms Hayden, was tagged, the Tweet objectively referenced Ms Hayden and FET had intended to reference her.
Ms Hayden said that the natural and ordinary meaning of the words complained of was that “Taxpayers are funding a delusional transactivist (Stephanie Hayden) to take people to court because she is offended over social media posts” and that she was “an unemployed delusional broke fantasist” and that she was “abusing the court to harass decent, hardworking people and their families”.
FET filed an acknowledgement of service, but instead of filing a Defence, it applied to strike out the claim or, alternatively, for summary judgment.
In terms of strike out, the issue was whether Ms Hayden’s pleaded case disclosed a proper basis of reference to and identification of Ms Hayden. In response to FET’s application, Ms Hayden had adduced further evidence in support of her case referencing additional tweets made by FET that she said were abusive of her, e.g. tweets criticising her and calling for her arrest for wasting police time in response to the arrest of Ms Farrow. Although this additional evidence was not pleaded, Mr Justice Nicklin found that it was clear that her case was based on extrinsic evidence. He also said that the nature of her case emerged clearly and that, in any event, she would be able to provide Further or Better Particulars to identify the material on which she wished to rely at a later date. Therefore, Nicklin J refused to strike out Ms Hayden’s case of reference and identification.
Similarly, in terms of summary judgment, Nicklin J did not consider Ms Hayden’s case on reference and identification to be fanciful. He said that it would be a matter for trial to determine whether the notional, ordinary, reasonable reader would understand the Tweet to refer to Ms Hayden, considering all the evidence.
As for serious harm to reputation under s 1 of the Defamation Act 2013, Ms Hayden had not adduced any substantial direct evidence of the impact of publication of the Tweet on her reputation. Her case was purely inferential.
As FET had not applied for a ruling on the meaning of the Tweet as a preliminary issue, nor had it applied to strike out those parts of Ms Hayden’s meaning that it considered wrong, Nicklin J said that it was not appropriate to decide the meaning of the Tweet. However, he noted that the seriousness of a defamatory allegation alone is not sufficient to satisfy the requirement of serious harm. It is the effect of its publication that must be assessed.
Nicklin J was “highly doubtful” that the Tweet had been published to “at least 45,000 Twitter users”, as Ms Hayden claimed. This figure appeared to be an aggregate of FET’s followers and those who followed Ms Farrow and Dr Moody. Nicklin J was sceptical that tagging somebody in a tweet had the effect of publishing it to all the tagged person’s followers. In any event, Ms Hayden had not provided any evidence that it did. The number of 45,000 was the theoretical maximum number of direct publishees, but the evidence did not support publication to anything like this figure. The evidence showed that the Tweet was liked twice and retweeted three times. Nicklin J noted that there may be people who simply read the Tweet and did not engage by liking or retweeting it, but the Tweet had only been available for a maximum of 40 minutes and not every user would have looked at their timeline within that time. Further, of the number of people who might have read the Tweet before it was deleted, for the purposes of serious harm to reputation, Ms Hayden also had to show that they had understood the Tweet to refer to her, which she also had not done. Nicklin J could not, therefore, draw the necessary inferences of fact as he might have been able to do if the publication had been made in a mass circulation newspaper for example. In Nicklin J’s view, Ms Hayden’s inferential case was “devoid of reality”.
Ms Hayden argued that she would be able to put further evidence in at trial. Nicklin J said: “That will not do”. The scope of the facts on which she intended to rely in support of serious harm to reputation had to be set out in her Particulars of Claim. She could have put in further evidence in response to FET’s application, but she had not done so. She could not resist the application on the ground that some evidence might emerge during the litigation, he said. In Nicklin J’s view, it was “fanciful” to suppose there was any likelihood that Ms Hayden’s case on serious harm to reputation would improve if the case were permitted to continue. She had put forward her best inferential case and, on an assessment of the underlying facts, it was “hopeless”. Accordingly, Nicklin J granted summary judgment to FET on the grounds that Ms Hayden had no real prospect of satisfying the requirements of s 1 of the 2013 Act and there was no other compelling reason why that issue should be disposed of at a trial. (Stephanie Hayden v Family Education Trust  EWHC 950 (KB) (24 March 2023) — to read the judgment in full, click here).