Academic feathers ruffled in twitter storm:

Two university lecturers and a restauranteur are doing battle in the High Court of Justice over tweets describing the claimant as a ‘weirdo’ and ‘freak’. In Wilson v Mendelsohn and others [2023] EWHC 231 (KB), the High Court was asked to consider whether the claimant’s claims for libel, misuse of private information, harassment and data protection (Claims) arising from various twitter postings should be struck out. 

The social media postings

In December 2018, an individual posted on Facebook a photograph of the claimant (Mr Wilson), a university lecturer, alleging that he was a ‘weirdo’ and had harassed and taken photographs of her and her daughter (Facebook Post). Following a request by the police, the Facebook Post was deleted.

The first defendant (Mr Mendelsohn), a law lecturer at the University of the West of England, had taken a screenshot of the Facebook Post and sent it to the Second Defendant (Mr Newbon), a lecturer at the University of Northumbria, via twitter. Mr Mendelsohn, Mr Newbon and the third defendant (Mr Cantor) followed each other on twitter.

In August 2020, Mr Newbon posted the screenshot of the Facebook Post on a twitter thread regarding antisemitism and Israel. The post followed a twitter spat involving Mr Wilson. Mr Newbon posted it again with other messages including ‘this freak takes pictures of kids’ apparently’.

Later in August 2020, Mr Cantor published a tweet comprising a screenshot of the Facebook Post with ‘define weird’. 

Mr Wilson’s claims against the defendants

In January 2021, Mr Wilson issued proceedings against the defendants for damages arising from the Claims. Mr Mendelsohn was pursued on the basis that, having taken the screenshot of the Facebook Post used by Mr Newbon and Mr Cantor, he was an ‘author’ under section 10 of the Defamation Act 2013 (Defamation Act) and was liable in damages or compensation for the reasonably foreseeable republications of that screenshot or as an accessory who assisted the tortious conduct of Mr Newbon and/or Mr Cantor. The Claims against Mr Newbon were settled following his death in January 2022.

In July 2022, Mr Mendelsohn and Mr Cantor applied for strike out/reverse summary judgment in respect of the Claims. Mr Cantor also applied in relation to the claim in data protection. The defendants (or, in the case of the GDPR claim, Mr Cantor) argued:

• the tweets were not sufficiently oppressive and unacceptable so as to amount to harassment and the technical requirements of a claim under the Protection from Harassment Act 1997 (Harassment Act) were not made out.
• the libel claim did not meet the threshold of ‘serious harm’ required under section 1(1) of the Defamation Act.
• the harassment, misuse of private information and libel claims were not serious enough (not a ‘real and substantial tort’) and it would be an abuse of process to allow the claims to proceed.
• the tweet was part of Mr Cantor’s personal or household activities and, therefore, not within the scope of the GDPR.
• Mr Wilson could not have a reasonable expectation of privacy in the material contained in the Facebook Post.

Decision of the court

Harassment:

• Against Mr Mendelsohn, the claim had a real prospect of success and so the application failed. The eight tweets (which either included or referred to the screenshot) were part of one twitter conversation but the duration of that conversation spanned two days. These were, at least arguably, ‘courses of conduct’ and/or persistent conduct within the meaning of the Harassment Act. The tweets had, at least arguably, crossed the boundary between that which was unattractive/unreasonable and conduct which was oppressive and unacceptable (particularly as the tweet could be interpreted to mean that Mr Wilson posed a risk to children). 
• Against Mr Cantor, the claim was struck out. One tweet could not amount to a course of conduct notwithstanding that the tweet remained live and so accessible to the public for nine months.

Libel:

The judge considered it not appropriate to strike out the libel claim on the ‘serious harm’ basis because:

• it would be unusual to do so when there had already been a trial on meaning (held in March 2022), a defamatory meaning had been found at that trial on meaning, there was a full and apparently credible plea of serious harm and disclosure had not yet taken place.
• the defamatory meaning of the amounted to a finding that what was alleged was quasi-criminal, i.e. harassment of the poster of the Facebook post and her daughter. The ‘weirdo and freak’ allegation was troubling and serious reputational harm was at least a likely consequence.
• the extent of the publication was relevant. It was reasonable to infer substantial publication based solely on the number of followers of the defendants; 2.5k in the case of Mr Newbon and 180 in the case of Mr Cantor. Higher education in the north of England was said to be a relatively small world and followers of Mr Newbon may know Mr Wilson.
• the issue of whether Mr Mendelsohn could have liability as the ‘author’ or ‘editor’ of Mr Newbon’s tweets within the meaning of s.1 of the Defamation Act was better left to the trial judge.

Data protection:    

• The court considered that it was at least arguable that data processing of this type would be within the scope of the GDPR. The application failed.

Misuse of private information:

• The application failed. It was at least arguable that Mr Wilson had a reasonable expectation of privacy in the screenshot. Case law suggested that information or purported information concerning past criminal behaviour ‘normally, but not invariably’ gives rise to that expectation. The judge considered that such principle may extend to quasi-criminal behaviour. Further, the photograph was taken outside a school attended by Mr Wilson’s daughter. A parent would not normally expect to be photographed on a school run, even without their child. 

Generally, the Claims did not involve minimal publication or insignificant damage and it would not be an abuse of process to allow them to proceed to trial.

Comments

The claim provides useful guidance on what may amount to a ‘course of conduct’ or ‘persistent behaviour’ for the purposes of the Harassment Act in the context of social media postings, with eight postings over two days being sufficient for the claim to proceed to trial. The case and decision also acts as a reminder of the potential liability of a person involved in the publication of defamatory or harassing material, even indirectly (Mr Mendelsohn not having tweeted the screenshot of the Facebook Post himself). 

Should you wish to discuss this topic further, then please do not hesitate to contact Hill Dickinson’s Dispute Resolution team who regularly advise on this area.