Reference:  EWHC 1349 (QB)
Court: High Court (Queen's Bench Division)
Judge: HHJ Lewis (Sitting as a Judge of the High Court)
Date of judgment: 27 May 2020
Summary: Privacy - breach of confidence - social media - real and substantial tort - general damages - aggravated damages - injunctive relief
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Appearances: Gervase de Wilde (Claimant) David Hirst (Defendant)
Instructing Solicitors: Claimant, Brett Wilson LLP, Defendant, direct access
The parties were anonymised. The Claimant (“C”) was, a graduate hoping to train as a lawyer. The Defendant (“D”) was her uncle.
The background to the claim involved an acrimonious family dispute involving, amongst others, C and her mother on one side, and D and C’s grandmother (“the Grandmother”) on another.
On 18 July 2018, C went on an afternoon and evening out to see the X-Factor auditions. C’s aunt created a post on Facebook about the trip, to which the Grandmother responded. The Grandmother then deleted this post, upon realising that C was also present, given the acrimony between them.
C and her mother responded to the Grandmother with goading comments. The next day, in response, the Grandmother posted a message referring to C as an “evil little troll” and reproducing an angry text message which C had sent her.
D posted his own response, the NTP Post, at 19.47, just 34 minutes after the Grandmother. Eleven minutes later, he re-posted having made some typographical corrections:
“On my God, can’t believe your you’re getting sucked in to [the Mother] and [C]’s sick world, I know it’s not easy when they’ve been sending sick texts and the endless abusive calls and online abuse – don’t put any more online, you unlike them have you your dignity, all you your kids are from one man and you’ve never had treatment for mental health and self harm – leave them to the police – what’s going on with getting the injunction against the 2 suck sick bitches”
The focus of the claim was on the words “treatment for mental health and self harm” (“the words complained of”).
C submitted a takedown request to Facebook and the NTP Post was removed by Facebook at 22.53 the same day for violation of its community standards, approximately three hours after it was posted. Facebook refused to remove the Grandmother’s post.
- Did the NTP Post identify C in respect of the words complained of and, if so, what information did it disclose about her, if any?
- How extensive was disclosure/publication?
- Was there a real and substantial tort/did the NTP Post surmount the threshold of seriousness for an Article 8 claim?
- Are breach of confidence and misuse of private information torts of deliberate intent where liability rests on the knowledge and conscience being affected, or are they torts of strict liability?
- Did JQL have a reasonable expectation of privacy in the information that was the subject of the claim?
- Was the NTP Post proportionate in all the circumstances?
- Should relief be granted in breach of confidence?
- What was the appropriate quantum of damages?
- Should C be granted an injunction?
Awarding £15,000 of general and aggravated damages, and granting an injunction:
- To a reasonable reader the words complained of would have been self-explanatory and would have been understood to mean that: (i) C has had mental health difficulties; (ii) C has “self-harmed”, meaning she has injured or harmed herself on purpose; and (iii) C’s mental difficulties and self-harm necessitated her receiving professional treatment.
- There was direct evidence of publication to six members of JQL’s family. The Court was satisfied that there was sufficient evidence to infer that a small number of additional people would have seen the NTP Post.
- The claim crossed the required threshold of seriousness. The question of whether there has been a real and substantial tort cannot depend upon a numbers game. The claim related to very sensitive, confidential medical information, the disclosure of which was said to have caused significant prejudice to C’s enjoyment of the right to respect for her private life. C had put forward evidence of the harm the disclosure had caused her. This was not a case where the remedy would be nominal.
- D intended to publish the words complained of, and was aware that in doing so he was disclosing the fact of C’s mental health and self-harm, and her treatment for it. It was not necessary for the Court to consider further whether these torts are in fact ones of strict liability.
- The Court was satisfied that a reasonable person of ordinary sensibilities, placed in the same position as C, would have considered that he or she had a reasonable expectation of privacy in the information that was the subject of this claim, namely treatment for mental health and self-harm.
- Considering the competing rights under Article 8 and Article 10, the rights of C in protecting her private medical information far outweighed the rights of D. The extent of the interference with D’s Article 10 rights was limited, and did not prevent him from being able to express his views about C or her behaviour, or take steps to protect his family. C’s claim for misuse of her private information and intrusion into her rights of privacy succeeded.
- It was equitable to grant relief in respect of the breach of confidence.
- The Court considered an award of £15,000 to be appropriate, to include (i) general damages in respect of distress, hurt, feelings of anxiety and embarrassment as well as C’s loss of control and autonomy; and (ii) significant aggravated damages. The disclosure was a serious intrusion into C’s privacy and an infringement of her autonomy, made considerably worse through the litigation. Notwithstanding the relatively small number of recipients of the information, this was a proportionate award.
- C was entitled to an injunction to protect her in the future, for five reasons: (1) it was the remedy that naturally flowed from the court’s decision that the information should not be published; (2) whilst D offered undertakings at the start of trial, the Judge was concerned about a subsequent disclosure; (3) D had been far from straightforward in these proceedings about what he did and did not say, making it appropriate for a clear restriction to be put in place; (4) there was a family feud and C was worried that this information would be deployed again in similar circumstances; and (5) it would help to curb the on-going harm C said she had been caused, by giving comfort that she could take back control of her information, to the extent this remained possible.
There are at least two notable features to this decision. First, there was a dispute between the parties over reference and what information was disclosed about C by the NTP Post. This case is the first example of the Court explicitly adopting the same approach to issues of this kind which is typically taken in defamation claims.
Second, this was a claim in which publication/disclosure of the claimant’s private information was limited, with D arguing that there had been no real and substantial tort. Again, the defamation approach was instructive, with the Court pointing to the well-established principle that the question of whether or not there is a substantial tort (or whether the claim is an abuse of process) is not a numbers game. The Court found that C was entitled to substantial damages, despite the small scale of disclosure.