Hayden v Dickenson

An interim injunction restraining publication must satisfy the heightened threshold in section 12(3) of the Human Rights Act 1998. A claimant will normally have to show that success at trial is more likely than not, but the court must also decide whether an injunction is necessary and proportionate.

Online criticism does not amount to harassment unless it is a sufficiently serious, persistent and deliberate course of targeted oppression. Where unwanted online contact can be stopped by available blocking tools, an injunction will ordinarily be neither necessary nor proportionate. Any harassment injunction must identify the prohibited acts precisely. A broad prohibition on referring to a person online unjustifiably restricts freedom of expression.

The claimant sought damages and an interim injunction for alleged harassment by publication, defamation and misuse of private information arising from the defendant’s Twitter and Facebook activity. A without-notice interim injunction had prohibited publication of the claimant’s spent convictions, online references to the claimant, and publication relating to the proceedings.

On the return date, the claimant sought a modified injunction restraining publication of spent convictions, any online reference to her, and direct contact. The defendant was subject to police bail conditions prohibiting contact with the claimant and social-media posts about her. The court had to decide whether the claimant met the interim-injunction threshold and whether any restraint was necessary and proportionate. The claimant also applied for the judge’s recusal on grounds of apparent bias.

1. The renewed application for an interim injunction was dismissed. The existing without-notice order was not extended. The proposed prohibition on any online reference to the claimant was impermissibly broad and a disproportionate interference with the defendant’s Article 10 rights. A harassment injunction must identify precisely the prohibited conduct, and a privacy injunction must identify the private information protected.
2. The historical social-media posts did not, on the evidence, cross the threshold into harassment. Apart from one post, they were not objectively targeted at the claimant; she had found most of them by searching for them. Unpleasant criticism and name-calling, particularly in the context of public debate, did not establish a persistent and deliberate course of targeted oppression.
3. Available self-help was material to necessity and proportionality. The claimant had been able to block the defendant’s accounts and calls. There was no evidence of attempts to circumvent those measures. The short burst of attempted calls and messages concerning the litigation did not, on the facts, justify a non-contact injunction.
4. The court provisionally found that the claimant’s Article 8 rights were engaged by further publication of the spent conviction, applying the general approach in NT1 v Google Inc [2019] QB 344. On an intense balance with the defendant’s Article 10 rights, the claimant was likely to establish at trial that public availability of the conviction should not be allowed. However, no interim order was necessary because the defendant’s bail conditions already prohibited the relevant conduct.
5. The recusal application was dismissed. Applying the apparent-bias test, a fair-minded and informed observer would not find a real possibility of bias. The judge’s questioning went to the legal and factual merits, and it was fair to proceed with the return-date hearing because the claimant bore the burden of justifying continuation of the interim relief.

High Court (Queen’s Bench Division): This was a first-instance determination of the return-date application. A without-notice interim injunction granted on 28 October 2020 was discharged in part at the return-date hearing and was not extended by this judgment.