England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/11/2021

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII, if appropriate, and/or publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 2pm on Monday 15 November 2021.

MR JUSTICE SAINI :

This judgment is in 7 parts as follows:

I. Overview: paras. [1-13]

II. Facts: paras. [14-57]

III. The Libel Claim: paras. [58-67]

IV. The Harassment Claim: paras. [68-91]

V. Damages: paras. [92-105]

VI. Injunction: paras. [106-109]

VII. Conclusion: paras. [110-111]

Annexe I: Schedule of publications

Annexe II: Sample tweets

I. Overview

1. This is the trial of a libel and harassment claim brought by Terri Ann Davies (C), professionally known as Terri Lucas, against Gavin Paul Carter (D). As regards the libel claim, I determined the meaning of the relevant publications at a trial of preliminary issues: [2020] EWHC 3372 (QB). There were earlier contested proceedings for an interim injunction determined by Soole J on 24 July 2020: [2020] EWHC 2674 (QB). Soole J continued an injunction I had granted on 3 July 2020. D has abided by the terms of the injunction.
2. C is a marketing expert. Until June 2019, she was in a senior role as UK Growth Leader at Mercer Limited. She was made redundant from that role and since September 2019 she has been a non-executive director of the Smith Institute, a company which provides management and business consultancy services.
3. C is married to Richard Davies ("Mr Davies"), who between 2006 and 2018 was a Director, and 100% shareholder of, Red Communications Consultancy Limited ("Red Communications"), a public relations and communications agency. Red Communications was dissolved in or around February 2018.
4. At the heart of these proceedings is a dispute ("the Dispute") which originally arose between D and Mr Davies/Red Communications, over a project for a website known as Voicebox Live. Red Communications was commissioned to produce the website for D. The website was intended to provide a platform for users to arrange live streaming of music events. D considered that he was delivered a defective product and poor-quality services by Red Communications. Between 2015 and 2017, D sought to seek justice for this perceived contractual wrongdoing by using social media to attack Mr Davies. D contacted Mr Davies' clients and associates. Mr Davies reacted by closing all of his social media accounts. At this point D turned his social media "guns" upon Mr Davies' wife, C.
5. Without (at this stage) getting into whether D's actions were justified, it is fair to describe his actions in this regard (between 2017 and 2020, when an interim injunction was granted) as a "campaign" waged against C.
6. C had no involvement in Red Communications, with Voicebox Live, or with the Dispute. She has never met D. Specifically, C's case is that she was at no time a director, employee, servant or agent of Red Communications. She says that she was targeted by D, at considerable personal, emotional and financial cost to her, because D cynically considered attacking C would be a way to get her husband's attention in relation to the Dispute.
7. D genuinely believes there is a legitimate claim for breach of contract against Red Communications. He has sought to name and involve C in the Dispute and it is clear that he has targeted her by undertaking communications online which made serious allegations of wrongdoing and inappropriate behaviour against her. He used a number of platforms including Twitter, his website and LinkedIn in making such communications about her.
8. The involvement (if any) of C in Red Communications is one of the principal issues in the claim. D has maintained at trial his pleaded case that C was involved in Red Communications and his publications in respect of C have been made on that basis. If he fails in this contention, he realistically accepted at trial that C was a victim of serious wrongdoing at his hands.
9. D acted in person and represented himself and presented his case clearly, with skill and with moderation. He clearly feels strongly about the wrong he believes he has suffered at substantial financial cost to himself and his recently deceased mother, at the hands of Red Communications.
10. I am very grateful to Counsel for C who provided me with substantial assistance and took appropriate steps to assist D as a litigant in person. During the trial and in particular during his cross-examination, Counsel treated D with real courtesy. I made certain modifications to the trial process to make the proceedings less formal and with breaks to assist D who faces certain health challenges (which I do not need to refer to but were the subject of earlier adjournments of this trial). D attended by CVP and C and her team were in court in person.
11. At points during the hearing, I sought to assist D by reframing some of his questions in cross-examination to seek to put what I understood his point was to various witnesses. I also sought to get him to focus in his questions on one of the main issues in the claim, C's involvement (if any) in the Dispute. He understandably wanted to focus on his underlying complaint about being supplied a defective product by Red Communications.
12. Before turning to my findings, I should summarise D's case (as pleaded and in evidence) as to why he targeted C and why he alleges she was involved in the Dispute. In response to both the libel and the harassment claims, D's case is based on his belief that C had a role in Red Communications. First, he relied on the fact that C had an email address, terri@redcomms3d.com, which he had discovered at some point via the web. D says that, by this email address, C had shown herself to be a "representative" of Red Communications. Second, he relied on the assertion that because C was described as an "admin" in the user log of Voicebox Live, this indicated that she was involved in its development. Third, he relied upon information he found on the web which he said showed C used her "Redcomms" email address as a professional address.
13. D also relied (in defence of his actions) on the alleged conduct of C and her husband in engaging with D via solicitors on a pre-action basis in October 2019 – January 2020. D was particularly concerned to stress harm allegedly done to his mother. He repeatedly said that his mother had been "brought into this [dispute]", including the pre-action correspondence. He referred in this regard to pre-action correspondence that had caused her worry and upset, particularly because in January 2020, Shuba Nath, then C's solicitor, had explained to D in correspondence that the effect of his being made bankrupt would be that restrictions would be entered on his mother's property on its Land Registry entry, and that the property sold if she died and D inherited. He interpreted that as a threat to "take her house away".

II. The Facts

14. I have based my findings principally upon the documentary records which identify in clear terms the passage of events. The oral evidence has really gone to issues of motivations and reactions of the participants to these events. I will limit myself to findings on issues which it is necessary for me to determine to assess the claims and the defences. Specifically, for reasons which appear below, it is not necessary for me to make any findings as to whether there is merit in D's underlying complaints about the services provided by Red Communications in relation to Voicebox live. That has become a substantial side issue about breach of contract which, even if established, could not justify the alleged libels or the acts said to amount to harassment if C in fact had no relevant involvement.
15. I note that when I approved the List of Issues for trial at the PTR on 18 November 2020, I explicitly recorded that there was an issue as to whether alleged faults in Voicebox Live were relevant. I do not consider them to be relevant. The real question is C's involvement if any in Red Communications and its supply of the alleged defective product.
16. I heard oral evidence from C, Mr Davies, Jed Jones (a programmer who worked for Mr Davies in relation to Voicebox Live), and Yvette Saunders (a former work colleague of C at Mercer). D gave evidence and he also called Kunal Pandey (a software developer who worked with D on the website following Red Communications' departure). Mr Pandey gave evidence from Jaipur, India. I also admitted a witness statement from D's deceased mother. There is no issue that she was the source of D's funds.
17. There were a number of other witness statements in the bundle before me, and a certain amount of confusion as to whether that evidence could be admitted if the opposing party did not wish to cross-examine the relevant witness. I did not find this helpful, particularly where one of the parties is a litigant in person. To cut through this, I ruled that a witness whose evidence was to be admitted at trial had to be called in accordance with the normal rule of civil procedure at trial.
18. I consider all of the witnesses who gave oral evidence to me were straightforward and doing their best to assist me. Although D feels strongly about the Dispute and is firm in his case that C was involved in Red Communications, I do not accept his evidence in that regard. I consider he has wrongly convinced himself of her involvement. He has based this belief on the slenderest of foundations. I do not however consider he was dishonest, and it is right I emphasise that at the outset.

Engagement of Red Communications

19. In 2014, D employed Mr Davies as a marketing consultant for his business, which was a website for the publication of creative materials, including live-streaming music and other performances. Having done some work, Mr Davies put D in touch with an independent company to provide him with a quote for creating the website. That company pulled out at some point and Mr Davies, through Red Communications offered to complete the website. Contractual arrangements were put in place between Red Communications and D. Two other people worked on the project, in addition to Mr Davies. They were Jed Jones as the programmer/developer and Neil Duffy the graphic designer. As I have said above, Jed Jones gave evidence at trial.
20. The purpose of Voicebox Live was to provide a livestream over the internet of artistic events (such as musical performances) for viewers in different locations to see. The website was to provide a list of "events", and the idea was that users could pay (via Paypal) to watch those events. D's intention was that this website would provide a means for members of an informal online community, whom in his evidence he referred to as "Grimniens" to engage with each other by holding and watching performances. The reason why these community members were known as "Grimniens" was because they had come together around a different website he operated, the Land of Grimney (which contained blogs and a private messaging function and chat rooms), and had characters based in the fantasy world of the Land of Grimney. These characters were operated online, both on that website and on Twitter.
21. It is common for websites to have what is colloquially referred to as a "front end" and a "back end". The "front end" provides the content which any user would access and experience when viewing the website in an internet browser (for example, a newspaper website will contain a "front end" of pictures, articles, videos and adverts, or a theatre website will contain a calendar of performances). Sometimes, viewers can log in to view content or make bookings. The "back end" is not visible to viewers but only to those responsible for managing the site itself, or those who own the site or are hosting it (that is, have put it onto a server so that viewers can access it via the world wide web). The "back end" contains the coding for the website and the files of content (often structured similarly to files stored on a laptop) together with any logs left by the developers. Often it will contain the data of viewers who have login details for the front page – for example, names and email addresses. This was the case with Voicebox Live.

Going "live" and the falling out

22. In October 2014 Mr Jones and Mr Davies demonstrated the software to D and his mother in Worcester. At that meeting they learned that all the funding for the site was being provided by D's mother. Mr Davies and Mr Jones explained that what had been demonstrated was the beta test version of the site and that the next step would be a beta test period. They advised that D engage a small group of test users who would join the site as performers and users, but without paying any monies. The purpose of a beta testing phase is to find all the bugs in the programming and also to see if the users actually used the software in the way intended. Mr Davies informed D that during the beta test phase they would fix any bugs free of charge and correct anything that did not work properly for the users, so that he could then release the site to the rest of the users in his group to use live.
23. There is a dispute as to the next series of events. I do not resolve that dispute because it is not ultimately relevant given my other findings. Mr Davies said that instead of operating a thorough beta test (and having resolution in due course) of any issues with the software, before Public Go Live, D made the decision to go straight to Go Live in December 2014 and to charge users for access to the site. Going straight to Public Go Live created problems. Mr Jones considered the software was ready to go live but would need testing. There is an issue as to whether these problems were the fault of D or Red Communications.
24. Turning back to my findings, what happened next is that D (no doubt feeling aggrieved) and his group started posting highly critical comments about the quality of the work on the website of the Red Communications, on Mr Davies' personal Twitter account and on his LinkedIn profile. They blamed him and the company for the problems with the site.
25. On the evidence before me, it is clear that the relationship between Mr Davies and D got steadily worse. In January 2015, D "sacked" Red Communications from the project and demanded the code for the site. Mr Davies informed D that he was prepared to release the code but would need payment of an outstanding bill.
26. Matters were not resolved, and D and his associates continued to pursue Mr Davies on social media suggesting that the programming that the company provided was sub-standard. In February 2018, Red Communications was dissolved. There was no attempt in the period of years before this to start legal proceedings. D decided to use social media as a way to get a solution.
27. Domain names are the web addresses which websites use (for example, www.theguardian.com or www.thetimes.co.uk). In 2014, Mr Davies had registered a number of domain names for Voicebox Live, for which he issued a two-year licence to D. At D's request he renewed that registration and issued a new licence in January 2016, again on a two-year basis. This was paid for by D's mother. In 2017, D's new development team realised that Mr Carter held a licence, but did not "own" the domain names. D asked Red Communications to transfer ownership to the domain names. Mr Davies refused to do so unless the online "campaign" against him (as referred to above) ceased. D and his team registered a new domain name (voiceboxlive.net). Mr Davies cancelled the automatic renewal option for the domain name voiceboxlive.com, although D and his team could have continued to use it until its expiry in January 2018. In January 2018, Mr Davies' registration of voiceboxlive.com ended. Another entity purchased it and then advertised it as for sale.
28. I do not need to decide (and will not determine) who was right or wrong in relation to this domain name affair. It is not relevant. It had nothing to do with C.
29. By some point in 2017, it seems Mr Davies had deleted all his social media accounts. That left D and his associates with no target to aim at. This led to them turning their social media "guns" on Mr Davies' wife, C.

The campaign against C

30. I will turn to the relevant communications below, but for present purposes I note that until June 2019 C was employed in a very senior position with Mercer UK. She reported to the CEO and was a member of UK Leadership Team. A re-organisation at Mercer meant that the role she occupied there was made redundant in June 2019.
31. At some point D discovered via the "back end" of Voicebox Live (that is, from the coding in the software- see above) that C's email address was registered as an "admin" at Red Communications. This led to him forming a belief as to C's involvement in the company from that address. That discovery was on Mr Pandey's evidence (which I accept) in August 2017 (that was some time after the first the tweets about C which are in issue).
32. C also had an email address with the Red Communications domain. C only had an email address associated with Red Communications (as a personal one) which her husband had set up for her (purely as a matter of convenience). That does not mean she had any responsibility for the alleged defective services provided by Red Communications or role within it. I have no hesitation in accepting her case that she had absolutely no involvement with any of Mr Davies' businesses, including Red Communications. Their business lives were then, and remain now, completely separate. Mr Davies did not involve her in his businesses, and she was not even aware of the dispute between his company and D until the events which give rise to this claim.
33. As explained above, D's case as to C's involvement in the provision of a defective product is based upon assumptions he has made from the fact that C had an email address and that she appeared in some code as an "admin" person. Against that I have her plainly truthful evidence that she in fact had nothing to do with the business of Red Communications or the claimed defective product. That evidence is the same as the also plainly truthful evidence of Mr Davies and Mr Jones. Mr Jones explained that "Terri" was used as an email address as part of his beta testing. It had nothing to do with C and was never discussed with her. There is also no documentary evidence to suggest these witnesses are wrong. Mr Pandey's evidence to the contrary was based simply on what he regarded as normal practice (as to the role and powers of a person who is "admin"). I prefer the evidence of Mr Jones as the person who actually created the "admin" identity with "Terri".
34. Parts of D's case rely on information gathered from so-called "data scrapers" on the internet. A data-scraping service such as holaconnect (D's source in this case) works by using "bots" (automated services) which pull together information from other sources on the internet and aggregate it if appears that the information from different sources pertains to one person. They do so without keeping that information up-to-date or with any regard for accuracy. To some extent, D has been misled and strengthened in his misguided view as to C's involvement by such information.
35. I turn to the communications.
36. The relevant communications for the purposes of the harassment claim appear in Annexe I to this judgment. There are too many for me to set out fully in this judgment, but I will seek to provide a summary of the development and content of this material below. Annexe II contains some sample tweets to provide a flavour.
37. The communications attacking C run between June 2017 and early 2020. They were mainly made via Twitter using a number of handles (some of which D accepts he used). The communications also on many occasions "tag" @Mercer (C's employer).
38. The substance of the communications begins with allegations that "she" (that is, C) should be ashamed and she "runs and hides too" in relation to the taking of £23,000 for failed work. She is clearly being held responsible by D for breach of contract. They continue with statements such as C has been guilty of "unbelievable behaviour from a @mercer member". She is accused of "shameful" behaviour. Unsurprisingly, Mercer became concerned and asked the tweeter @KyleScarmera (who says that "we have invoices" – suggesting it is D or someone in his camp) for further information. The communications were clearly having their desired effect of getting C's employer engaged.
39. The tweets also in due course began to accuse C of being responsible for "dishonest and unscrupulous business practice" and sought to take C to task for having blocked "us" and hiding. By January 2018, D had raised the issue of theft of domain names. On 30 September 2019, the CEO of the Smith Institute raised the issue of C being identified in a tweet (posted by D) in relation to her role as a non-executive director of the Smith Institute. As I describe below, this matter was pursued by that institute with C at a number of meetings. It was clearly a matter of reputational concern to the Smith Institute that one of its non-executive directors was being accused of serious wrongdoing in a public forum.
40. In late 2018, Mr Carter began to also conduct the campaign on LinkedIn (as well as Twitter), contacting C's business colleague Sonja Jefferson. He referred to the dispute with Red Communications and criticised her for associating with C.
41. A list of people and institutions whom C tweeted and/or posted on LinkedIn about C included the following:

@Mercer, @MercerUK – C's employer between August 2015 and June 2019

@Smith Institute – C's employer from 1 September 2019 to present day

@SaundersY12 – C's executive assistant at Mercer

@Siobhan Martin – the Human Resources Director, Mercer

@Richard Wilson – a senior business leader, Mercer

@MarkBloodworth8 and @BiggsDonna– colleagues, Mercer

@ValuableContent – a business partner of C

@SonjaJefferson – a business partner of C

@BossyLondon – a womens' network C supported personally as a volunteer

@Amina Deji-Logunleko – an entrepreneur C mentored, part of her voluntary work for The Cherie Blair Foundation for Women

@LMAppeal – the Lord Mayor of London's charity appeal for girls, part of C's voluntary work

@ClareHillDixon – a business acquaintance

@iSocialFanz – a social media support network C valued

42. I note that the @BossyLondon network had invited C to speak to a group one evening about her career path. They publicised this via Twitter and LinkedIn in the next few days. D then commented on this by posting about C. I accept C's evidence that she has not heard from that organisation since then (2018) and she has been unfollowed by the group.
43. On the evidence I have read and heard (particularly from C and Mr Davies), it is clear that the impact on C and her wellbeing was significant. D directly targeted the senior leaders of two of her employers, targeted fellow board members to undermine her, contacted her executive assistant directly, as well as posted on the pages of a whole range of suppliers, network colleagues and young women whom C mentored. I accept her oral evidence to me that this seriously undermined her ability to work, mentor and act as a role model in a most upsetting and damaging way.
44. The move to LinkedIn was particularly serious because it showed that D was now targeting people via this channel (given C had been forced to close her Twitter account) and so persistent was he that he was willing to move to new platforms in order to do it.
45. The evidence shows that the campaign continued throughout late 2019. I agree with Counsel for C that the LinkedIn posts were the most disturbing. On 29 September 2019, an account called "Gavin P" published a comment beneath a post by the Smith Institute (which had made C a non-executive director), referring to the dispute with Red Communications. On 19 October 2019, after C posted a comment beneath a colleague's post on LinkedIn, an account called "Grimnian Zoriat" (which belongs to D), posted a comment beneath C's referring to the Dispute again and publishing a link to a website called the Land of Grimney.
46. The Land of Grimney (D's website) featured a long post about C and her husband, which appears to have been updated several times. D also published a shorter blogpost article which repeats some of the claims in the original post at http://www.thelandofgrimney.co.uk/stories.php?ID=126.
47. On 23 and 24 October 2019 D accepted in response to pre-action correspondence that C had no role in Red Communications, agreed to remove posts (and started to do so), drafted an apology, and agreed to pay part of the legal costs. However, he subsequently changed his position and continued to post on C's LinkedIn and Twitter. D has updated the Land of Grimney post to make reference to legal proceedings.
48. The campaign continued into 2020 on both Twitter and LinkedIn, with D posting a distressing comment on the LinkedIn page of C's business colleague named Richard Wilson, sharing a link also to the Land of Grimney blog post mentioned above. At this point, C realised it was no longer tenable to keep her LinkedIn profile live, given that D used any posts or comments or news about C to target her business contacts.

Impact on C's employers

49. As I have recorded above, C was a UK Client Growth Leader and Leadership Board Executive at Mercer. D sent a persistent campaign of targeted tweets directly to her employer over a two-year period (2017-2019). I accept that affected her reputation and relationships within that business. She was asked by the PR team in the New York head office to explain the situation. In June 2019, Mercer restructured itself globally and C's role was cut. Although C's evidence is that D's campaign prevented her from getting another role at Mercer, I do not accept that she has established this on the evidence before me.
50. Since September 2019 C has been an independent Non-Executive Board Director at the Smith Institute. On 30 September 2019 the Chief Executive Officer contacted C about posts by D. On 21 October 2019 C was required to attend an extraordinary crisis meeting with the Chairman and CEO, to explain the situation arising from D's posts. C had to fight to keep her position and that it was a very stressful and humiliating experience. The Chairman made it clear that C needed to stop D's actions and prevent further negative impact on the business. He also questioned if they had hired the person that they thought they had hired. C was right to feel that he was questioning whether she was trustworthy and honest. On 22 October an all-staff email was circulated about D's posts and on 28 October 2019 C attended an all-staff meeting to explain the situation to tell them what she was doing to prevent harming the business and to apologise in person. I accept that this must have been an extremely embarrassing and humiliating experience, given C had just joined the company as a senior board member and staff had not met her before this meeting. This cannot have been a good start. C also had to draft an external email for outside parties to be used reactively.
51. Although the Smith Institute accepted C's word that nothing D accused her of was true, C was told by the Managing Director and the Chairman of the Smith Institute that if there was one more instance of the Smith Institute being dragged into this matter by D, C would be asked to resign her Non-Executive Board position.
52. A stigma has attached itself to C in relation to colleagues as a consequence of D's actions. She is right to say that his allegation of dishonesty in business matters is a direct attack on her credibility and integrity as a professional. There is force in the point that even if colleagues do not believe every detail of D's comments, they will suspect that there is a kernel of truth - thinking that there is no "smoke without fire".
53. As a marketing expert C is used to demonstrating the way to use social media channels positively and actively, to connect with people and to share relevant news and information. Her colleagues who have been approached directly by D used to enjoy C posting comments on their pages, sharing their content and helping make connections. C can no longer do this safely, either for them in enhancing their business reputations or for herself.
54. D's conduct has prevented C from using social media for professional networking purposes and caused her to close her Twitter account in 2018 and severely restrict her use of her LinkedIn account from 2017 until closing it in May 2020 (she reopened her LinkedIn account in August 2020 once the interim injunction was in place). Any attempt she makes to make herself visible to the business community (that is made up of her contacts and colleagues) as a way of gaining another fulltime position is at constant risk of attack by D. C feels completely powerless to resist D's prolonged campaign.
55. Although I accept getting a senior board level job is dependent on being highly visible and active in networking, I am not satisfied on the evidence that any specific role which C would have obtained has been lost by D's actions.

Impact on health and wellbeing

56. C lives in constant fear of the next intrusion into her personal and business life. She is constantly and genuinely afraid of D's next action. Mr Davies said that his wife felt a physical reaction he likened to being "punched" whenever D posted something. C wakes every morning wondering if she will hear from a valued colleague that someone they do not know has posted something disturbing about C on their social and professional media channels, invading their space and implicating them by association with her.
57. When C receives and reads documents from D her heart rate quickens, she feels physically sick, and the post dominates her thoughts. D's actions have taken a toll on her marriage and personal relationship. It is not hard to see how that would have happened. C would naturally feel that she has been targeted for no reason other than the fact of a business dispute D has with her husband.

III. The Libel Claim

58. There are three publications in issue. D accepts he was responsible for their publication. In my judgment on the preliminary issues, I determined that the meanings were as follows:

a) Twitter account @reddslowwe on 29 September 2019: C had been complicit in deliberately and without justification avoiding repaying monies owed to customers at a time when she had been involved in supplying a defective product;

b) LinkedIn account Gavin P on 29 September 2019: C had been involved in exploitative business practices and her association with the Smith Institute brought that institute into disrepute;

c) The Land of Grimney website (publication after January 2020): (i) C had been complicit in deliberately and without justification avoiding repaying monies owed to customers; (ii) C had, by way of such exploitation, profited from selling a product which she knew or should have known was unfit for purpose; (iii) C was involved in extorting money from a vulnerable person; and (iv) C had told untruths about the nature of her involvement in the company which had supplied the product.

59. I also determined at the preliminary issues trial that these were statements of fact and not opinion. The nature of D's defence is truth.
60. At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as "the consensus requirement", is that the meaning must be one that "tends to lower the claimant in the estimation of right-thinking people generally." I have to determine "whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society": Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68 [51]. The second requirement is known as the "threshold of seriousness". To be defamatory, the imputation must be one that would tend to have a "substantially adverse effect" on the way that people would treat the claimant: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985 [98] (Tugendhat J).
61. In my judgment, both of these requirements are easily satisfied when one looks to the meanings. This case involves allegations of seriously disreputable and dishonest business conduct at a Chase I level.
62. C also has to satisfy section 1(1) of the Defamation Act 2013 which provides that "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant". This means that a claimant must now prove not only that the statement had a defamatory tendency, but also that it did as matter of fact cause serious reputational harm or was likely to do so: see Lachaux v Independent Print Ltd [2019] UKSC 27 [2020] AC 612.
63. Again, in my judgment, this is satisfied. I rely both on the words themselves and the factual evidence of C as to how the communications were received by those who employed her and others. These were publications not only made to the world at large, but (in the case of the publication on Twitter) directly published to C's employer. It is highly significant that as a consequence of D's publications, C was called into a crisis meeting at the Smith Institute, where she was asked to explain herself, required to explain herself further at an all-staff meeting and apologise; she was told that further incidents would cause her the loss of her job. The Chief Executive of the Smith Institute described her relationship with C as starting to falter because of the "social media issues" and stated that "it takes effort to get over that". I accept her evidence that the damage has been such that C does not feel that she can call her employers as witnesses lest it be exacerbated. Publications by D prior to September 2019 caused harm to her reputation at her previous employer. Although these earlier publications are not sued on in libel (limitation having expired), they contain similar themes. I infer that similar harm would have been caused by the later publications.
64. D's defence is one of truth or substantial truth, under section 2 Defamation Act 2013: "It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true". The burden of proof is D's. "Imputation" refers to the defamatory meaning conveyed by the statement conveyed of. That meaning falls to be determined by the court, stepping into the place of the hypothetical reasonable reader. Once the court has done so, it is that meaning which the defendant must prove to be substantially true, Bokova v Associated Newspapers Ltd [2019] QB 861 at [37]–[43]. The determination of meaning therefore determines logically the scope of a truth defence. The defendant must make out the "substantial truth" of the imputation: "[t]he court should not be too literal in its approach or insist on proof of every detail where it is not essential to the sting of the article…", Turcu v News Group Newspapers [2005] EWHC 799 (QB) at [109].
65. If the defamatory imputation is one of "guilt" of specified misconduct (as in this case), the defendant must prove specific acts or omissions by the claimant, see Duncan and Neill (5^th Edition) [12-18].
66. In my judgment, in order for D to prove the substantial truth of these allegations, he would have to prove the following:

a) Involvement by C in Red Communications;

b) Involvement by C in Voicebox Live;

c) Involvement by C in circumstances in which, despite not having any direct engagement with D, she knew or ought to have known that it was wrong to accept money for the project;

d) Conduct amounting to profiteering, extortion and exploitation;

e) Untruths told by C about her involvement in Voicebox Live; and

f) Voicebox Live being a "defective product".

67. The truth defence does not get off the ground because on the evidence D has not proved C's involvement in Red Communications. I refer to my factual findings above. One does not get to the stage of considering whether D's complaints about the product were true. C succeeds in her libel claims.

IV. The Harassment Claim

68. C has to show that there was a course of conduct (two or more acts) that amounts to harassment and that D knows, or ought to know, amounts to harassment: section 1, Protection from Harassment Act 1997 (PHA 1997). D denies these elements. D relies on a defence under PHA 1997 s1(3) (c), namely, that the conduct was "reasonable" in the circumstances. This is for D to "show" (the burden of proof is on D). D may be liable for conduct instigated by others which he aided, abetted, counselled or procured, s7(3A)).

Legal principles

69. A person may be liable under s7(3A) of the PHA for harassment which they do not undertake directly but which they aid, abet, counsel or procure, where they provide active support and encouragement "behind the scenes", and by showing continuing approval for a course of conduct or its means of operation (where such approval might be material), Smithkline Beecham v Avery [2011] Bus LR D40 [63-64].
70. Harassment is a "persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress", see, eg. Hayden v Dickenson [2020] EWHC 3291 (Hayden) [44(i)]; Hayes v Willoughby [2013] 1 WLR 937 (Hayes) at [1], [6]. The conduct "must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability": Hayden [40(ii)].
71. It is important to stress that this threshold will not be crossed purely by causing a person alarm or distress: the references at s7(2) PHA to alarm and distress are merely guidance as to one element of the tort, Hourani v Thomson [2017] EWHC 432 (QB) at [138], Hayden at [44 (iii)]. Rather, the test is wholly objective: D "ought to know" the course of conduct amounts to harassment if a "reasonable person in possession of the same information" would think it amounted to harassment: s1(2) PHA 1997, Hayden [44(iv)]. Liability is not affected if the objective test is met but D did not appreciate the effect: CSC Computer Sciences Ltd v Price [2018] EWHC 3990 (QB) and [2015] EWHC 2438 (QB).
72. Publication of material to the world at large can constitute harassment: Thomas v News Group Ltd [2002] E.M.L.R 78 [30] (Thomas); regard will be had to the ECHR (in particular, Article 10); Thomas at [32-33]; Majrowski v Guy's & St Thomas's NHS Trust [2007] 1 AC 224 at [20]; Howlett v Holding [2006] EWHC 41 (QB). Where alleged harassment is of journalistic material, nothing short of a conscious abuse of media freedom will justify a finding of harassment, Hayden [40(xii)]. This is determined by reference to the material and not the author or process of publication, McNally v Saunders [2021] EWHC [2012] (QB) [74].
73. In most cases involving publication to the world at large, publication is not targeted at a person, even when it is about that person; however, this is not a universal rule and particularly in cases of social media publication it may be difficult to distinguish between speech about a person and speech targeted at a person, McNally [68-69]. Where the alleged harasser has sought to evade a "block" (eg. by using a different handle) that might be regarded as targeting an individual.
74. Publication on a website of the name of an individual in the knowledge that such publication will inevitably come to his/her attention on more than one occasion and on each occasion cause them alarm or distress may constitute harassment: Law Society v Kordowski [2014] EMLR 2, [61] and [75], Oliver v Shaikh [2019] EWHC 3389 (QB) [82].
75. In most cases involving harassment by speech (or publication) there is a fundamental tension between harassment as conduct which alarms the person or causes them distress, and express protection under Article 10 for speech which offends, shocks and disturbs, Hayden [40(vii)]. The court's assessment as to whether the boundary between merely unattractive and oppressive and unacceptable conduct must pay due regard to the importance of Article 10 and that any restrictions upon it must be necessary, proportionate and established convincingly, Hayden [40(viii)]. If the case engages the complainant's Article 8 rights, the court will have to assess the interference with those rights, the justification for that interference and proportionality, Hourani [142-146]. The resolution between a conflict of rights is achieved through the now well-established "ultimate balancing test" in In Re S [2005] 1 AC 593 [17].
76. In a claim of harassment by publication, the context and manner in which the information is published are all important: Hayden [44(ix)]. A person may accordingly be harassed by the repeated publication of information which is already in the public domain, or which is either true or alleged as true: Hayden [44(x-xi) and Merlin Entertainments LPC v Cave [2015] E.M.L.R 3 [40-41]. However, the truth or falsity of information is relevant as a significant factor in the "overall assessment", Hayden [44(xi)].

D's responsibility

77. Annexe I contains the relevant publications. D disputes that he sent certain of these and where there are disputes, I find that D was responsible for posting relevant publications relating to C since 21 June 2017. I will address this point in more detail below. In summary, from October 2018 onwards he has been exclusively, or almost exclusively, responsible for those publications. As to D's liability in relation to posts made by others, his evidence before Soole J and for trial has been that he "led the way but did not order". In the context of this case, I consider that "leading" would amount to liability under s7(3) PHA 1997. I find that D was able to persuade at least some of the others who had posted on Twitter about C to remove their posts following receipt of pre-action correspondence. D has also confirmed that he shared some of the relevant accounts with others engaged in the alleged harassing conduct, such as Cassy Black. It is significant that throughout D's evidence and statements of case, he admits to setting up many of the relevant Twitter accounts. Although he suggests that these were later passed on to others, the evidence he provides suggest that he was operating at least one account on dates of relevant publications.
78. Turning to the matter in more detail, I understood that on D's case he does not accept he was responsible for tweets from the following accounts: @UrsulaLygarlis, @kylescamera, @AlexaMadrigan (he accepts creation not operation of the account), @AypexWulf, @CassyBlack, @BuzzWulf, and @karliaveritas. "Gothika Blaine" "Lochy Lassie" and "Sorcha Sarandor" were referred to in C's schedule of publications at trial but they were not used to make tweets which are in issue and I say nothing further about them.
79. Of the accounts in issue, I find D had direct responsibility as follows:

(i) @UrsulaLygarlis was his account. His solicitors in a letter of 22 November 2019 said so;

(ii) As for @AlexaMadgrigan he said in an email to Mr. Davies of 16 October 2014 that he had an account AlexaMadrigan@yahoo.com;

(iii) The terms of the tweet of @karliaveritas on 21 August 2017 are indicative of D and not a third party tweeting. It said "@terrancelucas is it right for you to block us after your husband took 23000 for a failed internet job and took our domain names too".

80. For those where I do not find D was actual (direct) tweeter, I am satisfied he was responsible. He was the only person who would care about the loss of his mother's money and I find he encouraged the operators of those accounts to make the tweets. He procured them within s.7(3)(a) PHA. I do not find it credible that third parties would have any interest in the Dispute at the time the tweets were made.

The nature of publication

81. Although a number of the relevant publications were to the world at large, they were targeted at C in that they contained express or implied demands for money, frequently tagged C in and targeted her through her employers' accounts, or the accounts of her colleagues. I also note that other publications were targeted at specific colleagues of C, for example Sonja Jefferson and Richard Wilson.
82. I also find that D evaded, and sought to evade, both Twitter reports and account closures, and ultimately even C's removing of herself from the internet by contacting a colleague, Richard Wilson, by direct message.
83. D's purpose in making (or procuring) these publications appears to have been payment of the money he believed he was owed by Red Communications.

Was D's conduct oppressive and unacceptable?

84. In my judgment, this test is readily satisfied. I rely upon the following facts in this conclusion:

a) The posts amounted to repeated demands for money;

b) The publications have been significant in number;

c) The publications continued on an intermittent and unpredictable basis for nearly three years, until shortly before the injunction;

d) The publications moved across three platforms, being Twitter, LinkedIn and the Land of Grimney, and included direct messages as well as publications to the world at large;

e) The publications involved repeated attempts to engage third parties for the purposes of recovering money from C;

f) As a consequence of the publications, C found that she had to remove her entire presence on the internet;

g) It included dissemination of C's contact information;

h) It continued after D had accepted in correspondence that C was not involved in Red Communications: "We are happy to accept that Terri Lucas, (Davies) may not have played a part in Richard's Davies [sic] amoral business. It would have helped had she not blocked us, deleted herself from social media and distanced herself from the whole situation".

Did D cause C alarm and distress?

85. Having heard her oral evidence, this requirement is satisfied. I refer to her evidence summarised above.

Reasonable conduct?

86. As to whether the conduct was "reasonable" in the particular circumstances, I refer to Thomas at [31-37]; Hayes at [14], [20], [26]; Hourani at [184-188] [208] [221-222] [235]. The burden of proof is on the defendant. For compliance with Article 10, the course of conduct must be "so unreasonable…that it is necessary and proportionate to prohibit or sanction the speech" (Hourani at [184], citing Trimingham v News Group [2012] 4 All E.R. 717 [53]. This threshold will only be met where a competing fundamental right (usually Article 8) is engaged. The court is required to follow the test set out in In Re S, to which I have already made reference.
87. Truth is not a defence. However, while truth would not be sufficient to sustain a defence, it is not irrelevant, and it may be important to the "intense focus" on the competing rights of the claimant and the defendant (Hourani at [188]), as well as to the nature of any prohibition on future publication or other remedy: Hayden at [44(xi)].
88. If the information published is not true, the defendant's reasoning and evidential basis for publishing the information is relevant. It is not enough that a defendant may believe a fact or believe conduct to be reasonable, especially where the process of reaching that conclusion is "beyond sloppy": Hourani [222]. These points are of relevance in the present case. I also note that repeated vilification by means of very serious allegations would amount to an "irresponsible exercise of freedom of expression": Hourani [235]. A defendant's inability to distinguish truth or falsity in relation to the person harassed is also a relevant factor going to the fact that conduct is not reasonable: R v Debnath [2005] EWCA Crim 3472 at [25].
89. Applying these principles, in my judgment D's conduct was not reasonable. D's continued insistence that C was involved in Red Communications and involved in the dispute arising over Voicebox Live was irrational. It was without foundation. He also had no reasonable basis to accuse C of extortion or unwarranted demands at the pre-action stage. I do not consider the nature of C's pre-action correspondence justified D in making allegations of serious wrongdoing against her.
90. In short, the publications amount in substance to repeated vilification, and unwarranted demands for money. Moreover, these demands were made in circumstances in which D had never sought compensation through normal channels (such as writing to Red Communications to ask for a refund or breach of contract litigation against Red Communications). This conduct has continued for 3 years and I accept C's evidence that she has experienced psychological distress and stigma impacting upon her Article 8 rights. She has also been forced to remove her presence from the internet, itself an infringement of her Article 10 rights and particularly problematic for her as a senior professional in marketing and communications. I accept that a finding of liability interferes with D's Article 10 rights, but that interference is justified and proportionate given these circumstances. Failure by D to prove a defence of truth underlines that conclusion.
91. The harassment claim succeeds.

V. Damages: libel and harassment

Principles

92. It is established that libel damages have a threefold purpose namely: (1) to compensate for distress and hurt feelings; (2) to compensate for actual injury to reputation which has been proved or might reasonably be inferred; and (3) to serve as an outward and visible sign of vindication. The principles were summarised by Warby J in Barron v Vines [2016] EWHC 1226 (QB) at [20] – [21] and [79] – [82].
93. Damages for harassment under the Protection from Harassment Act 1997 are to compensate a claimant for distress and injury to feelings: ZAM v CFW & Anor [2013] EMLR 27 [59].
94. The principles applicable when assessing damages for harassment were set out by Nicklin J in Suttle v Walker [2019] EWHC 396 (QB) at [54] – [56]. I note that Nicklin J in that case took into account (inter alia) the following factors in assessing damages for harassment: (a) the fact that the defendant's campaign was "clearly and deliberately targeted" at the Claimant; (b) the campaign was relentless over a period of three to four weeks; (c) it had a lasting effect on the claimant; (d) the use of a Facebook group was deliberately to recruit others to gang up on the claimant.
95. As far as assessment of harassment damages is concerned there are established guidelines taken from employment discrimination cases: see  Barkhuysen v Hamilton [2018] QB 1015 at [160].
96. The sums in the Vento bands have recently been increased. I refer to The Employment Tribunal's Presidential Guidance (26 March 2021). In respect of claims presented on or after 6 April 2021, the bands are as follows: a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.
97. On the facts before me there is some overlap between the conduct complained of in the libel claims and the conduct complained of in the harassment claim. I consider however that the libel claim is less extensive than the harassment aspects and I should make separate awards. I will however make a single award for each of the libels.

Libel award

98. I have considered the schedule of libel and harassment awards in the Appendix to Gatley on Libel and Slander (12^th Edition), but they are only of indirect assistance. C argued that the libellous allegations against her were very serious, namely that she was complicit in exploitative and/or unlawful business practices, including extortion of money from a vulnerable person. I agree that these are serious allegations. The posts were clearly intended to adversely impact upon her career.
99. The publications were targeted at C's employers and would have reduced in some respects her standing with her employers and in the marketing industry. As regards the injury to feelings aspect, these are sufficiently covered by my harassment award below, but I will separately award £10,000.00 as damages for libel taking into account injury to reputation and vindication.
100. I reject C's claim for aggravated damages in respect of the libels. I do not consider the way in which D conducted his defence was inappropriate or oppressive. C accepts that D was not conducting a dishonest defence (that is, running a case knowing it was false). They submit, and I accept, that D has genuinely convinced himself of facts when such belief is ultimately irrational. He has accused witnesses of being guilty of perjury, but I do not hold that against him given the stressful nature of this claim and the challenging health issues he is facing.

Harassment award

101. The first element of C's claim is injury to her feelings caused by D's harassment campaign. Counsel for C argued these fell within the top Vento band. It was argued that the intrusion into C's personal and professional life has caused great hurt, anxiety and distress, which was then manifested in physical symptoms (headaches and neck, shoulder and back pain) and inability to sleep. I accept these were the consequences of D's actions, on the basis of the findings I have made above. No medical evidence has been submitted but I accept that the physical symptoms can be taken into account as an aspect of injury to feelings. They are the types of thing which would follow.
102. I do not however consider the facts of this case (while serious) take this into the top Vento band. I find it is a middle band case (range £9,100-£27,400). I will identify where it falls below.
103. The second element is damage to professional life which is said to give rise to a particularised loss of £15,000. It is said that the course of conduct has seriously embarrassed C in her professional reputation and relationship with her employers and business associates. Reliance is placed on what was called "stigma" in relation to Mercer, the Smith Institute and friends and colleagues. I was unpersuaded on the evidence that such causation of loss sounding in damages for a distinct sum was proved. This broad "stigma" point seems to me in any event to be covered to some extent in the injury to feelings aspect.
104. C did not pursue her original additional damages claim that D's course of conduct has prevented her from using social media for professional networking purposes and has therefore impeded her career development and resulted in a loss of a chance to secure further work.
105. I will award C the sum of £25,000.00 (towards higher end of Band 2) for injury to feelings. I bear in mind the free speech interests involved but it would not be an exaggeration to describe D as having made the personal and professional life of C very difficult when one considers the volume and nature of the material before me. Her right to private life as protected by Article 8 ECHR is very much in issue. D's Article 10 rights were used in an inappropriate manner and based upon irrationally formed beliefs as to C's role in a company which he thought had wronged him.

VI. Injunction

106. C is entitled to an injunction to restrain repeat libels.
107. I am also satisfied that an injunction to prevent harassment should be granted. As I said during argument, this remedy was clearly the most important form of relief for C (as opposed to the financial relief).
108. The terms of the injunction will need to be considered with some care given the competing rights of C and D under Articles 8 and 10. Applying Hourani, I consider this is a case of an irresponsible misuse of the D's right to freedom of expression. C's application for a final injunction meets the threshold required under s12(4) Human Rights Act 1998. To the extent that D might seek to rely on s12(4), he is not engaged in journalistic activity, and there is not, in any event, a live issue of public interest.
109. In my judgment, Article 10 rights do not justify allowing a defendant to continue to pursue a campaign which is based on an irrational view of a claimant's involvement in wrongdoing. It is hard to see on the facts before me how C's legitimate interests could be protected other than by way of a carefully framed injunction restraining D.

VII. Conclusion

110. The libel and harassment claims succeed. I award damages as set out above of £10,000.00 in libel, and £25,000.00 in respect of the harassment claim.
111. As I informed the parties to the end of the trial, I will hear submissions on the terms of injunctive relief.

Libel claim