Insights High Court declines to continue interim injunction in relation to posts made on social media in harassment, defamation and misuse of private information claim


In October 2020, Stephanie Hayden, who described herself as a “a minor public figure known for my involvement with the ongoing debate surrounding transgender issues”, obtained an interim injunction against Bronwen Dickenson, without notice, in respect of posts made on Twitter and Facebook by Ms Dickenson, which Ms Hayden alleged constituted defamation, harassment and misuse of private information. Ms Hayden complained that the posts repeatedly referred to a previous criminal conviction of Ms Hayden, which dated back over 20 years and was therefore spent under the Rehabilitation of Offenders Act 1974. The posts also referred to Ms Hayden as a “serial” and “vexatious” litigator.

The interim injunction restrained Ms Dickenson from publishing in any form anything directly or indirectly referring to Ms Hayden’s spent conviction and from referring to Ms Hayden on any form of social media, online forum or website. The order also restrained Ms Dickenson from publishing anything relating to the proceedings. Ms Hayden served the injunction on Ms Dickenson, both on Twitter (as permitted by the order) and by post.

On 31 October 2020, a section from Ms Hayden’s witness statement containing reference to Ms Hayden’s spent conviction was posted online. Ms Hayden complained to the police and Ms Dickenson was arrested. She was later released on bail under the conditions that she did not: (i) contact Ms Hayden directly, or indirectly; and (ii) post on social media anything relating to Ms Hayden.

Ms Hayden then sought the continuation of the interim injunction on the basis of harassment and misuse of private information, but not defamation. Ms Hayden did not request continuation of the order restraining Ms Dickenson from publishing anything relating to the proceedings. However, in addition to orders that Ms Dickenson should not publish anything relating to the spent conviction, or refer to Ms Hayden in any way whatsoever online, Ms Hayden also sought an order that Ms Dickenson should not contact her, otherwise than via a legal representative.

Mr Justice Nicklin found that, in relation to the acts of alleged harassment by Ms Dickenson, Ms Hayden had not demonstrated that they had crossed the line from unattractive or unreasonable behaviour, to conduct that was oppressive and unacceptable. They had taken place in a fairly limited time frame and, apart from one message, none of the posts was objectively “targeted” at Ms Hayden. The hallmark of harassment was a persistent and deliberate course of targeted oppression, he said. Whilst he accepted that some of Ms Dickenson’s language had been unpleasant, and may have upset Ms Hayden, Nicklin J found that most of it either fell comfortably within the width of freedom of expression or was puerile “name-calling”.

Further, Nicklin J said that the court could reasonably expect a person who was the subject of unwanted communications to engage in a degree of self-help before turning to the courts. The first step, he said, was “self-resilience”, i.e. the ability to ignore or shrug off unpleasant messages or comments, a quality that was perhaps all the more important if a person intended to engage in public debate. Step two was to block such contact, which Ms Hayden had not done until after she had received the 16th message. After being blocked, Ms Dickenson had not tagged Ms Hayden in any subsequent messages. The only reason Ms Hayden had become aware of them was because she had sought them out.

Put simply, Nicklin J said, if the alleged harassment could be stopped by using blocking tools, it was neither necessary nor proportionate for the court to grant an injunction. In Nicklin J’s view, it was disproportionate, as there was a readily available and less intrusive measure than an injunction that would achieve the same aim.

Nicklin J accepted that the extent of the interference of Ms Hayden’s Article 8 rights by repeated reference to her spent conviction was potentially significant, as it undermined her ability to draw a line under offences that were decades old and in respect of which she was statutorily rehabilitated. However, the potential significance was mitigated by: (i) the actual and threatened extent of publication: the Defendant had only 1,200 followers and it was not a case of publication on the scale of a national newspaper; and (ii) at least initially, Ms Dickenson was simply questioning whether Ms Hayden had the spent conviction, rather than stating as a fact that she did.

As for the interference with the Ms Dickenson’s Article 10 rights, Nicklin J said that the injunction sought was in wide terms, which significantly restricted those rights, as it prevented any publication of the spent conviction in any medium, which could include private discussion. Further, the order sought to regulate Ms Dickenson’s future conduct in relation to circumstances that could not be known.

Nicklin J said that the issue was finely balanced, but in the end, he refused to grant an injunction, as an exercise of discretion, because he was not satisfied that it was necessary. Ms Dickenson had been arrested and released on conditional bail, which prohibited her from carrying out the acts that Ms Hayden was seeking to restrain. If Ms Dickenson were to breach the terms of her police bail, then Ms Hayden might be justified in returning to court.

Finally, Nicklin J found that Ms Hayden’s request for an order that Ms Dickenson should not make any reference to Ms Hayden in any terms whatsoever on any online platform was a very broad restriction and Ms Hayden had not demonstrated that she was likely to be granted a restriction on such broad terms at trial. In Nicklin J’s view, it was a disproportionate interference with Ms Dickenson’s Article 10 rights. Such an order would prevent Ms Dickenson from even mentioning, online, that she was being sued and would silence her from commenting on Ms Hayden or her activities. Nicklin J said that he could “scarcely conceive of circumstances in which the Court would grant an injunction in these terms”. He noted that injunctions to prevent harassment have to identify, precisely, the harassing conduct being prohibited and merely mentioning someone in an online post, without more, was very unlikely to amount to harassment. Ms Hayden’s request also failed on the alleged misuse of private information claim, as the order sought did not identify the private information that could not be published; it simply prohibited any mention of Ms Hayden and that did not amount to private information.

Accordingly, Ms Hayden was not entitled to an injunction in the terms sought. Therefore, the ex parte order previously granted was not extended and Ms Hayden’s application was dismissed. (Stephanie Rebecca Hayden v Bronwen Dickenson [2020] EWHC 3291 (QB) (2 December 2020) – to read the judgment in full, click here).