James Wilson v James Mendelsohn & Ors

A claim for misuse of private information requires an objective assessment of whether a person of ordinary sensibilities would have a reasonable expectation of privacy, followed, where necessary, by a balance between privacy and freedom of expression. Confidentiality is a significant factor. A public act in a public place will ordinarily weigh strongly against privacy, and an allegation by a private person on social media does not attract the special starting point applicable to official suspicion.

For defamation, serious harm may be inferred from the gravity of the allegation, publication, likely readership and percolation. Identical publications may be aggregated where they convey the same imputation. A person who supplies defamatory material for unrestricted use may be liable for authorised or reasonably foreseeable republication.

James Wilson brought claims against James Mendelsohn, Peter Newbon and Edward Cantor arising from the disclosure and republication of confidential workplace information and a screenshot of a Facebook post concerning an incident outside a school.

The preliminary meaning of the Facebook post had been determined by a deputy High Court judge in [2022] EWHC 715 (QB). The present trial concerned misuse of private information, breach of confidence, defamation, liability for republication, data protection and damages. The central issues were whether the workplace information and screenshot attracted a reasonable expectation of privacy, whether the publications caused serious harm, whether truth or honest opinion was established, and whether Mendelsohn was liable for republication by Newbon and Cantor.

1. Misuse of private information. The court applied the two-stage test identified in ZXC v Bloomberg LP: first, whether a reasonable person of ordinary sensibilities in the claimant’s position would have a reasonable expectation of privacy; secondly, whether the claimant’s article 8 rights outweighed the publisher’s article 10 rights. The University Information was confidential and concerned a private workplace complaint, investigation and decision. It therefore attracted a reasonable expectation of privacy. Disclosure to a person unconnected with the university, motivated by hostility and the wish to assist another dispute, was not justified.
2. The screenshot did not attract a reasonable expectation of privacy. The claimant was engaged in a public act in a public place. The fact that the post referred to a possible criminal or quasi-criminal act did not invoke the principle concerning official suspicion. That principle could not be extended to an intemperate allegation by a private individual on social media. The stage-one failure made a stage-two balance unnecessary, although the defendants’ article 10 interests would have received little weight.
3. Defamation. The publications were capable of causing serious harm. The court considered the seriousness of the imputation, the claimant’s professional position, general publication to unknown users, likely readership and social-media percolation. The four substantially identical Newbon publications could be treated together. The defences of truth and honest opinion failed because the factual allegations were unproved and an honest person could not have held the stated opinion on the facts established. The pleaded similar-fact material had no sufficient connection with the facts indicated in the post.
4. Republication and relief. Mendelsohn was the originator of the screenshot for the purposes of Defamation Act 2013, section 10. His communications authorised Newbon to use the material as he wished, or at least made republication reasonably foreseeable. Mendelsohn was therefore liable for Newbon’s republication and, as it was almost inevitable that the material would be retweeted, for Cantor’s republication. The data-protection claim added nothing to the relief. The claim succeeded in defamation against Mendelsohn and Cantor and in misuse of private information concerning the University Information against Mendelsohn. Damages of £22,500 were awarded against Mendelsohn and £7,500 jointly against Mendelsohn and Cantor, with an injunction to be formulated after further submissions.

High Court (King’s Bench Division): The court determined the trial claims. The claim succeeded in defamation against Mendelsohn and Cantor and in misuse of private information concerning the University Information against Mendelsohn. The screenshot privacy claim failed.

Earlier preliminary issues: The meaning and defamatory nature of the Facebook post had been determined in the same litigation by a deputy High Court judge in [2022] EWHC 715 (QB) .