James Wilson v James Mendelsohn & Anor

Harassment by publication requires a persistent and deliberate course of targeted conduct which crosses the boundary from unattractive or unreasonable conduct into oppressive and unacceptable conduct. The assessment is objective and must reflect the seriousness threshold associated with criminal liability, while giving due weight to freedom of expression and the context and manner of publication.

A single publication ordinarily cannot constitute a course of conduct. A libel claim should rarely be summarily dismissed for lack of serious harm where defamatory meaning has been established, serious harm is properly pleaded and relevant evidence remains outstanding. Jameel abuse is a last resort, particularly where vindication is a legitimate benefit.

The claimant brought claims in libel, harassment, misuse of private information and data protection arising principally from the republication on Twitter of a Facebook post depicting him and alleging that he had behaved improperly outside a school.

A preliminary meaning judgment, Wilson v Mendelsohn, had found defamatory meanings, including allegations of unwarranted and worrying conduct amounting to harassment. The defendants applied to strike out or obtain reverse summary judgment on substantial parts of the claims. The issues included whether the publications could constitute harassment, whether serious harm was sufficiently arguable, whether the third defendant’s activity fell within the personal or household exemption under the GDPR, whether the claimant had a reasonable expectation of privacy, and whether the claims were a Jameel abuse.

1. Harassment. The claim against the first defendant had a real prospect of success. Eight tweets, published over several hours and across two days, arguably constituted a course of conduct. Repeatedly confronting the claimant with allegations that he was a weirdo or posed a risk to children arguably crossed the boundary into oppressive and unacceptable conduct. The objective test, the criminal-law threshold and the importance of freedom of expression were relevant to the assessment.
2. The harassment claim against the third defendant was dismissed. His screenshot tweet was a single occasion. The later tweets were offensive and designed to goad or taunt, but did not republish the screenshot or amount to a second occasion of harassment. The fact that the tweet remained available online did not establish a further occasion of conduct.
3. Libel. Summary dismissal for lack of serious harm was inappropriate. The established meaning alleged quasi-criminal conduct and the pleading and evidence disclosed a respectable inferential case of serious harm. The extent of Twitter publication and outstanding analytics required fuller investigation. The question whether the first defendant was an author or editor under section 1 of the Defamation Act 2013 was arguable and better left for trial.
4. Data protection. It was at least arguable that the third defendant’s publication to a stranger with whom he had political differences was not a purely personal or household activity. The GDPR claim therefore required trial.
5. Misuse of private information. The claimant had a real prospect of showing a reasonable expectation of privacy. Relevant features included the quasi-criminal allegation, the school-run setting and the circumstances in which the first defendant obtained the Facebook post.
6. Jameel abuse. The claims were not abusive. The publication was not minimal, the alleged reputational harm was not insignificant, and vindication was a legitimate benefit. Case-management powers could ordinarily secure proportionate adjudication, so strike-out remained a last resort. The application failed except for dismissal of the third defendant’s harassment claim.

The judgment records a prior preliminary issue judgment on meaning dated 30 March 2022: [2022] EWHC 715 (QB). The present court determined the strike-out and reverse-summary-judgment application concerning the remaining claims.