November 29, 2021
In 2014, a dispute arose between the defendant, Gavin Carter, and Richard Davies, who used to own a PR agency called Red Communications Consultancy Ltd. Mr Carter had commissioned Red Communications to produce a website called Voicebox Live to provide a platform for users to arrange live streaming of music events.
Mr Carter considered that he was delivered a defective product and poor-quality services by Red Communications and sought justice by using social media to attack Mr Davies and to contact Mr Davies’ clients and associates. Mr Davies closed his social media accounts, at which point Mr Davies turned his attention to attacking Mr Davies’ wife, Terri Ann Davies, the claimant in these proceedings. Mrs Davies was a marketing expert. Until June 2019, she had a senior role as UK Growth Leader at Mercer Ltd. Since September 2019, she had been a non-executive director of the Smith Institute.
The communications on social media and on Mr Carter’s own website attacking Mrs Davies began in 2017 with allegations that she should be “ashamed” and that she “runs and hides” in relation to taking £23,000 from her customers for the failed Voicebox Live website. They continued with statements that she had been guilty of “unbelievable behaviour from a @mercer member” (thereby involving her employer) and of “shameful” behaviour. The communications then began to accuse her of being responsible for “dishonest and unscrupulous business practice”.
Through the communications, Mr Carter directly targeted the senior leaders of both her employers and fellow board members to undermine Mrs Davies. He also contacted her executive assistant directly and posted on the pages of a whole range of suppliers, network colleagues and young women whom Mrs Davies mentored. The CEO of the Smith Institute became concerned when Mr Carter began connecting his comments of serious wrongdoing by Mrs Davies with her role as a non-executive director of the Institute. The matter was pursued by the Institute with Mrs Davies at several meetings.
Mrs Davies issued proceedings against Mr Carter for defamation and harassment. Mrs Davies said that, despite not being involved in Red Communications or in any of its projects, she had been targeted by Mr Carter at considerable personal, emotional and financial cost to her.
Establishing the facts, Mr Justice Saini said that the main question was not whether Red Communications had delivered an allegedly defective product to Mr Carter, but whether Mrs Davies had any involvement in Red Communications and its supply of Voicebox Live. Mr Carter relied on the fact that Mrs Davies had an email address, firstname.lastname@example.org, which he had discovered online using “data scrapers” and which he said showed that Mrs Davies was a “representative” of Red Communications. He also relied on the assertion that because Mrs Davies was described as an “admin” in the user log of Voicebox Live, she was involved in its development. Finally, he relied upon information he found online that he said showed Mrs Davies used her “redcomms” email address as a professional address.
Saini J found that on the witness evidence, Mrs Davies was not involved in any way whatsoever with any of Mr Davies’ businesses, including Red Communications. She did not know of the dispute between her husband and Mr Carter. The “redcomms” email address was used solely as part of the beta testing phase of the website and had nothing to do with Mrs Davies. The same was true of her being described as “admin” in the Voicebox Live user log. It was normal practice and was not even discussed with her. There was also no documentary evidence to show that this witness evidence was wrong.
As for the effect of Mr Carter’s campaign on Mrs Davies, Saini J found that this was significant. Mr Carter’s actions had seriously undermined Mrs Davies’ ability to work, mentor and act as a role model in a most upsetting and damaging way. The posts to her employers also affected her reputation and relationships within the businesses. Mrs Davies had had to fight to keep her job and had been told that if the matter continued, she would be asked to resign. Saini J accepted that this was a very stressful and humiliating experience. He also found that a stigma had attached to Mrs Davies in relation to her colleagues because of Mr Carter’s actions. Mr Carter’s allegation of dishonesty on her part was a direct attack on her credibility and integrity as a professional. Saini J also accepted that Mrs Davies lived in constant fear of the next intrusion into her personal and business life and was constantly and genuinely afraid of Mr Carter’s next action. Mr Carter’s campaign had also taken a toll on her marriage.
In terms of the libel claim, there were three publications in issue, the meanings of which were:
- Twitter: September 2019: Mrs Davies 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;
- LinkedIn: September 2019: Mrs Davies had been involved in exploitative business practices and her association with the Smith Institute brought that institute into disrepute; and
- Mr Carter’s website: after January 2020: (i) Mrs Davies had been complicit in deliberately and without justification avoiding repaying monies owed to customers; (ii) Mrs Davies had, by way of such exploitation, profited from selling a product which she knew or should have known was unfit for purpose; (iii) Mrs Davies was involved in extorting money from a vulnerable person; and (iv) Mrs Davies had told untruths about the nature of her involvement in the company which had supplied the product.
In Saini J’s judgment, all three statements satisfied both the consensus requirement, i.e. that they lowered Mrs Davies in the estimation of right-thinking people generally, and the seriousness threshold, i.e. the imputation of the statements was one that would tend to have a substantially adverse effect on the way that others would treat Mrs Davies. Saini J said that the case involved allegations of seriously disreputable and dishonest business conduct at a Chase I level.
As for serious harm under s 1(1) of the Defamation Act 2013, i.e. that the statements, as a matter of fact, caused serious reputational harm or were likely to do so, Saini J’s view was that this was also satisfied, as a result of the factual findings noted above.
Mr Carter defended the defamatory meanings conveyed by the statements as “substantially true” under s 2 of the 2013 Act. Saini J found that this defence did not even get off the ground as Mr Carter had failed to prove that Mrs Davies was involved in Red Communications in the first place, let alone that she had been involved in the Voicebox Live project and that her conduct had amounted to profiteering, extortion and exploitation. Accordingly, the libel claim succeeded.
As for the harassment claim, Saini J found that although some of the publications were to the world at large, they were targeted at Mrs Davies. Further, Mr Carter had evaded and sought to evade both Twitter reports and account closures and was responsible for Mrs Davies removing herself from the internet. Mr Carter’s purpose appeared to have been the payment of the money that he believed Red Communications owed to him.
In addition, Saini J found that Mr Carter’s conduct was oppressive and unacceptable for several reasons, including that: (i) the posts amounted to repeated demands for money; (ii) there was a significant number of publications; (iii) the posts continued for nearly three years; and (iv) the posts moved across three different platforms. Saini J also found that the publications had caused Mrs Davies alarm and distress.
Mr Carter relied on the defence that his conduct was “reasonable” under s 1(3)(c) of the Protection from Harassment Act 1997. Saini J disagreed, finding that Mr Carter’s continued insistence that Mrs Davies was involved in Red Communications and involved in the dispute was irrational and without foundation. He also had no reasonable basis to accuse her of extortion or unwarranted demands and there was no justification in making allegations of serious wrongdoing against her.
In short, Saini J said, the publications amounted to repeated vilification, and unwarranted demands for money that were made in circumstances in which Mr Carter 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 continued for three years resulting in Mrs Davies experiencing psychological distress and stigma impacting upon her Article 8 rights. She had also been forced to remove her presence from the internet, which was itself an infringement of her Article 10 rights and particularly problematic for her as a senior professional in marketing and communications.
Saini J acknowledged that a finding of liability interfered with Mr Carter’s Article 10 rights but found that the interference was justified and proportionate in the circumstances. Mr Carter’s failure to prove a defence of truth underlined that conclusion. Accordingly, the harassment claim succeeded.
Saini J rejected Mrs Davies’ claim for aggravated damages but awarded damages of £10,000 for libel, taking account of reputation and vindication. Saini J also awarded damages of £25,000 for injury to feelings in relation to the claim in harassment. Saini J also awarded an injunction to restrain repeat libels and to prevent further harassment. (Terri Ann Davies v Gavin Paul Carter  EWHC 3021 (QB) (15 November 2021) — to read the judgment in full, click here).