Hayden v Dickenson

Harassment by online speech requires objectively oppressive and unacceptable conduct beyond ordinary irritation or upset. Its assessment must respect freedom of expression and consider the context and manner of publication. An injunction must identify the prohibited conduct or private information precisely. Where available blocking tools can stop unwanted contact, an injunction is unnecessary and disproportionate. Public references to a spent conviction may engage privacy rights, even where the information is true or publicly accessible. Those rights require a fact-sensitive balance against freedom of expression. Interim relief remains discretionary and may be unnecessary where existing bail conditions provide protection and their inadequacy is speculative. On a return date, the applicant retains the burden of establishing entitlement to relief. Judicial questioning directed to the merits does not itself establish apparent bias.

Stephanie Rebecca Hayden, a legally trained participant in public debate about transgender issues, brought claims against Bronwen Dickenson for harassment by publication, defamation and misuse of private information. The claims concerned Twitter and Facebook posts criticising the claimant and referring repeatedly to a conviction which was decades old and spent under the Rehabilitation of Offenders Act 1974. The claimant also complained about publication of correspondence and subsequent direct messages and attempted calls.

An anonymous Twitter account, @ReporterLAL, had directed abusive messages at the defendant. The defendant believed that account was operated by, or connected to, the claimant. The claimant denied operating it or participating in its messages. That dispute provided relevant context but remained unresolved.

Julian Knowles J granted a temporary injunction without notice on 28 October 2020. On the return date, the claimant sought modified restrictions on publication of spent convictions, online references to her and direct contact. By then, the defendant was subject to police bail conditions prohibiting contact and social media posts about the claimant. After the hearing, the claimant also sought Nicklin J's recusal, alleging apparent bias arising from his questioning and his receipt of an email which she had not seen before the hearing.

1. The renewed injunction application and the recusal application were dismissed. The original injunction would not be extended. Its restriction on publication of anything relating to the proceedings had already been discharged because continuation was not sought. That restriction was unusually broad and potentially conflicted with the public hearing ([25]–[27], [89], [109]).

2. Harassment required an objectively serious course of targeted oppression. The claimant had not demonstrated that the defendant's historic conduct crossed the boundary from unpleasant or unreasonable behaviour to oppressive and unacceptable conduct. Apart from one tagged message, the claimant had sought out the posts herself. The limited period, protected criticism and provocation from @ReporterLAL were relevant. The attempted calls and messages appeared directed to discussing the litigation and had not been shown to constitute harassment ([44], [70]–[72], [77]).

3. The court could reasonably expect some resilience and practical self-help. Where blocking tools could stop unwanted contact, an injunction was unnecessary and disproportionate. Attempts to circumvent blocking could strengthen the case for protection, but no further telephone contact after blocking was evidenced ([73]–[77]).

4. A prohibition on every online reference to the claimant was disproportionate under Article 10. Harassment injunctions must identify prohibited acts precisely; privacy injunctions must identify protected information. Merely mentioning a person was very unlikely, without more, to constitute harassment. Glenn v Kline [2020] EWHC 3182 (QB) applied ([53], [68]).

5. The spent conviction engaged Article 8 on the evidence available, applying NT1 v Google Inc [2019] QB 344. Truth and public availability did not determine the harassment or privacy claims. Where protection of reputation was the substance of an application, alternative causes of action could not avoid the stricter defamation threshold. Sections 8 and 13 of the Rehabilitation of Offenders Act 1974 and Civil Evidence Act 1968 respectively meant that interim defamation relief concerning a spent conviction would, practically, require an unanswerable case of malice. Here, the substance was protection against intrusion ([80]–[83]).

6. The balance under In re S [2005] 1 AC 593 would narrowly have favoured suitably limited protection. The defendant had advanced no particular justification for publicising the conviction. Nevertheless, relief was refused as unnecessary because bail conditions already prohibited the relevant acts, and their inadequacy was speculative. Evidence of subsequent publication in breach of bail could justify a renewed application. The privacy issue remained for later determination ([7], [84]–[89]).

7. A fair-minded and informed observer would find no real possibility of bias. The defendant's personal circumstances did not affect the merits. The return hearing properly required the claimant to establish entitlement afresh. Guiding litigants in person and testing submissions were consistent with CPR 3.1A(4); merits-based scepticism was not prejudice unrelated to the case. Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 applied ([101]–[109]).

• High Court, Queen's Bench Division: In [2020] EWHC 3291 (QB) , Nicklin J dismissed the renewed application for an interim injunction and the subsequent application for recusal. The existing injunction was not extended.
• High Court, Queen's Bench Division: Julian Knowles J granted an interim injunction without notice on 28 October 2020 until the return date of 11 November 2020. At the return hearing, Nicklin J discharged the restriction on publishing anything relating to the proceedings and reserved judgment on the remaining relief sought.