Kelsey Farish

Last week, a High Court judge in England ordered a man to pay his niece £15,000 (nearly $19,000 USD) in aggravated damages for making a Facebook post about her struggles with mental health and self-harming. The Court found that the Uncle committed the torts of misuse of private information, and breach of confidence.

The Facts

This case, JQL v NTP [2020] EWHC 1349 (QB) (27 May 2020), concerns a series of nasty Facebook comments exchanged between JQL, a 24 year-old woman, her Mother and Grandmother, and her uncle, NTP. “A feature of this family” the judgment notes, “is the extent to which they fall out, with some disputes lasting years.”

What appears to have set off the incident in question is the posting of a group photo including JQL and her Mother, when they were part of the X-Factor studio audience. A series of comments were made by various family members, with the Mother finally sniping about the Grandmother. JQL then joined in, adding: “I forgive you for being a terrible grandmother and forgetting all of us. But I love you and forgive you for your behaviour. You’re old and don’t mean it. I’m sure you’ll regret it one day.”

This is where it gets a bit dramatic. The following evening, the Grandmother posted, “Below is one of the messages this evil little troll [JQL – full name] sent“. She then shared a message from JQL, which said (amongst other things): “You toxic bitch […] Fuck off out of all our lives. Stop trying to affect my mother’s life. You’re dead to her so stay that way and pipe down“.

According to the judgment, NTP later spoke to his mother (JQL’s Grandmother) to make sure she was okay, as she had not seemed herself. She told him about the comments on Facebook, so he decided to post his own response. This is the comment that eventually became the subject of the lawsuit:

Oh my God, can’t believe you’re getting sucked in to [Mother] and [JQL]’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 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 sick bitches

Moments later, JQL submitted a take-down request to Facebook, on grounds of hate speech. Although the post was removed just three hours later, there was enough evidence to infer that around 20 to 35 people from outside the family would have seen it. The following month, JQL issued a letter of claim not only for misuse of private information and breach of confidence, but for libel and breach of GDPR. She sought an “irrevocable apology”, and an undertaking that her uncle would not say anything further about her mental health or self-harming.

The Legal Questions

Tort of Misuse of Private Information

ZXC v Bloomberg LLP [2019] EWHC 970 (QB) reiterates the legal principles to be applied in order to establish liability for misuse of information. Firstly, the claimant must have had a reasonable expectation of privacy in the relevant information. Secondly, the claimant’s privacy must not be outweighed by countervailing interests, such as the defendant’s freedom of expression.

In his defence, NTP denied that the comment would have been understood as a disclosure about JQL. But the Judge rejected this defense, explaining that the words would be self-explanatory to a reasonable reader. Namely, that JQL’s mental difficulties and self-harm necessitated her receiving professional treatment.

In reality, JQL had indeed experienced poor mental health for a continuous period between the age of 14 and 18, including the regular cutting and burning of herself. She was admitted briefly to a psychiatric ward in 2014, following which she received specialist care for binge eating and purging, mood instability, and self-harm. It was around this time – when they had all been on better terms – that the Mother had confided in her brother about JQL’s problems.

The Court found that, although only a small number of people read the comment, it contained very sensitive, confidential medical information. On the facts, NTP’s disclosure to family members caused significant prejudice to JQL’s right to privacy under Article 8 of the European Convention on Human Rights. This had been one of her deepest secrets, and at trial JQL explained that the ordeal had set back her recovery, as she felt overwhelmed at the return of “ghosts from her past”.

NTP argued that he was exercising his Article 10 rights to freedom of expression, in order to support his vulnerable mother against JQL’s “trolling”. Again, here the Court disagreed, noting that the comment went beyond “just a rebuke, it was an attack”, and that NTP “chose to reveal deeply personal information that any person would have appreciated would wound.” Because JQL’s Article 8 rights far outweighed her uncle’s Article 10 rights, her claim for misuse of her private information and intrusion into her rights of privacy succeeded.

Tort of Breach of Confidence

As for the breach of confidence claim, the three-limbed test is set out in Coco v AN Clark (Engineers) Ltd [1969]. The claimant must establish that the information was: (a) confidential; (b) initially shared with the defendant in a confidential manner; and (c) later disclosed by the defendant without authorisation. NTP admitted on cross-examination that he had received the information from his sister (JQL’s Mother) in confidence, and that he had never disclosed it before making the angry Facebook post. As such, the Judge was satisfied that it was equitable to grant relief for the breach of confidence. The GDPR is not mentioned beyond JQL’s original letter of claim, nor is data protection more generally: the Court only focused on the torts in its judgment.

Damages

The Judge awarded “general damages in respect of distress, hurt, feelings of anxiety and embarrassment as well as JQL’s loss of control and autonomy” together with “significant aggravated damages.” The harm was aggravated by the way in which NTP had conducted the litigation, namely by seeking to examine his niece’s mental health and medical history in an intrusive and unnecessary way. He also made vindictive threats to his niece’s solicitors. Lewis J concluded by saying the award of £15,000 “marks the wrong and provides a measure of solatium”, as “this was a serious intrusion into JQL’s privacy and an infringement of her autonomy, made considerably worse through this litigation.”

Information about someone’s medical treatment, and their mental health, is deeply personal and recognised widely as being inherently private. Whilst nobody should be embarrassed about their mental health difficulties, the reality is that many people choose to keep them secret, not wishing to be labelled or judged, discriminated against or just treated differently.

Lewis J, para. 137

I completely agree with Lewis J’s decision, here, which serves as a stark reminder of the impact that a hurtful social media post can have ⁠— even if it is only up for a few hours. From a practical legal perspective, note that the Court is not afraid to use its discretion to impose aggravated damages where litigants increase the distress and costs incurred by the other side. I also find it interesting that JQL hopes to become a lawyer, a fact brought to light in part because her uncle threatened to crush “any aspirations [JQL] has of entering the legal profession.” Given her first-hand experience, I imagine she would probably make a good privacy lawyer one day.