Family feud on social media – cousin’s conduct amounts to libel and harassment

Deputy High Court Judge Aidan Eardley KC ruled that five tweets and three videos caused serious harm to the claimant’s reputation. The judge also found that the tweets amounted to a campaign of harassment, which the claimant suffered in England and Wales to a sufficient extent to establish liability, even though he was only briefly present in the jurisdiction.

Background

The claimant, commonly known as Zulfi Bukhari, is a former minister in Imran Khan’s government in Pakistan, currently living in Dubai. He had previously been a high-profile businessman in the UK and remains active in business and politics. The defendant, Syed Bukhari, is the claimant’s cousin and lives in England. The defendant was unrepresented at trial, and it was common ground between the parties that the defendant has disabilities, affecting his ability to speak and to concentrate in the morning. Deputy Judge Eardley KC noted the “inequality of arms between the parties” and made certain adjustments to the trial process to account for that.

The defendant published 249 tweets and 21 videos between early September 2019 and 20 March 2020, containing various allegations about the claimant, including theft, fraud, corruption, threats, and responsibility for physical attacks. His Twitter bio read: “Real cousin & victim of Zulfi Bukhari (PM Imran Khan's advisor & minister) & his father Wajid Bukhari. They ruined our lives Seeking justice & need your help.”

The claimant brought claims in libel and harassment, contending that 40 of the tweets and/or embedded videos amounted to libel, and that all 249 tweets constituted a course of conduct amounting to harassment.

Preliminary rulings

At a preliminary stage in the High Court,^[2] Mr Justice Murray found that 40 of the tweets and/or the videos embedded within them were statements of fact and were defamatory at common law. Shortly before the libel trial was due to begin, the defendant attempted to advance defences of truth, honest opinion and publication on a matter of public interest under sections 2 to 4 of the Defamation Act 2013 respectively. Those were stated to be based on alleged court decisions in Pakistan.

The court rejected that application on the basis that: (a) the application was being made on the first day of trial; (b) the case should not face further delay as it has been commenced in 2020; (c) two judges had already rejected the defendant’s attempts to put a defence of truth on record; (d) the defences of honest opinion and publication in the public interest had not previously been pleaded or intimated; and (e) the events relied on by the defendant all occurred in 2024, long after the defendant’s publications between September 2019 and March 2020.

Issues

As such, the only issue for determination at trial in the libel claim was whether one or more of the defendant’s tweets or videos caused serious harm to the claimant’s reputation.

The relevant issues in the harassment claim were: (a) whether the tweets and videos constituted a course of conduct amounting to harassment; (b) whether the defendant knew (or ought to have known) that was the case; and (c) whether the conduct was reasonable in the circumstances.

Libel decision

The claimant advanced an inferential case based on the principles in Lachaux,^[3] citing his prior good reputation, his high profile in the British Pakistani community, the seriousness of the allegations and the extent of publication (including how many times the videos were viewed). He also invited the judge to rely on the allegations, the ridicule and insults that he had received from political opponents, and the fact that questions were asked about him in Pakistan’s parliament as a result of the publication.

The defendant, despite agreeing that many of his followers were in England and Wales, argued that there was only minimal or no likely impact on the claimant’s reputation there. The defendant argued that the allegations were already in circulation and maintained that his tweets were directed towards a Pakistani audience. The vast majority of the tweets were in English, and the defendant spoke in Urdu in the videos.

Deputy Judge Eardley KC accepted that the claimant was a man of good reputation before publication, and that all of the defamatory allegations were serious. In particular, the claims of theft, fraud, corruption, threats, and responsibility for physical attacks were very serious for an individual in the position of the claimant, who traded off his reputation for probity and was a minister in a government with an explicit anti-corruption stance.

Moreover, the fact that the defendant made it clear that he was a close relative of the claimant would, in the eyes of readers, have lent him apparent credibility and given him insight into the claimant’s family affairs. So, it was reasonable to infer that many of the defendant’s followers would have had a particular interest in the claimant.

The judge considered that the “repetitive and obsessive” nature of the tweets, which were “bare assertions” being made in the “fast-moving, conversation world of Twitter”, may well have harmed the defendant’s credibility in the eyes of his readers.

On the extent of publication and re-publication, the judge emphasised that only primary publications in England and Wales could be considered. It was acknowledged that evidential difficulties existed in such respect, given the inherent uncertainly as to the true extent of the engagement with each publication and the geographic location in which that engagement took place.

Nevertheless, the judge found that five tweets and three videos had caused serious harm to the claimant’s reputation. The 'likes', 'retweets' and 'replies' to those tweets, and the 'views' of the videos, were taken into account as evidence of engagement with the publications. The judge also inferred that the defendant’s allegations would have been passed on electronically or by word of mouth to the Pakistani community in England and Wales due to the claimant’s prominence among that community.

Although the judge recognised the difficulty in quantifying the engagement from readers in England and Wales, the apparent extent of that engagement and the likelihood of circulation among the Pakistani diaspora were sufficient to cross the serious harm threshold, on the basis that at least some of the readers and some of the publication would have been in England and Wales.

Harassment ruling

The parties accepted that, as a public figure, the claimant could be expected to be “more robust and tolerant” than others. Nonetheless, the claimant contended that the Twitter campaign of 249 tweets over the period of 171 days constituted harassment under section 1 of the Protection from Harassment Act 1997.

In claiming a course of conduct amounting to harassment, the claimant relied on the following factors:

• the nature of the allegations (i.e. that the claimant was corrupt and his family’s wealth was derived from serious crime);
• the repetitiveness and frequency of the posts (often more than once a day);
• the tagging of the claimant in those tweets (with the intent to bring them to his attention); and
• the tagging of individuals and media organisations (showing an intent to publicise the allegations to as wide an audience as possible).

Deputy Judge Eardley KC noted that Article 10 of the European Convention on Human Rights is usually engaged by harassment by publication and so, where publications are journalistic in nature (which is to be judged solely by reference to its subject matter),^[4] “nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment”. In this instance, the judge found that the defendant’s Twitter campaign was not journalistic in nature, given that he repeatedly asserted the same bare allegations, with no attempt to elucidate or develop them. Accordingly, the heightened standard for journalistic material was not applied.

The judge was satisfied that the defendant’s Twitter campaign “had all the hallmarks of a course of conduct amounting to harassment”. He noted that: (a) the Twitter campaign was specifically targeted at the claimant; (b) the tweets were frequent, repetitive and likely to cause the claimant distress; (c) the allegations were extremely serious; and (d) the defendant sought the widest possible publicity for the tweets.

Further, on the objective limb of the test, the judge found that a reasonable person in possession of the same information as the defendant ought to have recognised that the course of conduct amounted to harassment. Indeed, he was sent legal letters articulating a harassment complaint twice during the course of the Twitter campaign.

On the defence of reasonable conduct, the judge found that the defendant’s case was insufficient. The defendant argued that there was a public interest in airing the allegations, and that his conduct was reasonable in the circumstances, on the basis of the claimant’s position of power and influence in advising a prime minister who had been elected on an anti-corruption ticket. Yet the allegations required at least some reasonable basis, and there needed to be reasonable grounds for their frequent repetition. On the defendant’s pleaded case, no such evidence was advanced.

The judge then considered the Shakil-Ur-Rahman line of authorities,^[5] which indicate that a harassment claim can only be made out if the harassing effect of the defendant’s course of conduct was experienced in England and Wales. The judge was satisfied that he could take into account all of the tweets and videos (which had all been published in England and Wales), and he did not have to consider whether only the tweets published while the claimant was in the jurisdiction amounted to a course of conduct. Furthermore, he concluded that the claimant needed only to have experienced harassment “to more than a minimal extent” while in England and Wales, and confirmed that, in assessing that question, he could take into account that the tweets published while the claimant was present in the jurisdiction were a continuation of the conduct that was already affecting the claimant abroad.

As such, although the claimant was only present for approximately 20 to 22 days during the period in question, the judge found that the claimant experienced harassment in the jurisdiction to a sufficient extent to establish liability. The judge noted that the limited amount of time that the claimant spent in England and Wales during that period was a matter for damages, not for liability.

Damages

Deputy Judge Eardley KC made separate awards for libel and harassment on the basis that there was only limited overlap between the two.

• Although the words were only published to a few hundred people in England and Wales, with a larger but unknown audience via secondary publication, the allegations were found to be particularly damaging to the claimant, who was awarded £40,000 in damages for libel (including aggravated damages).
• The claimant was awarded £3,000 for harassment, compensating him only for the impact on him within England and Wales.

Comment

This case illustrates that posts with only a few hundred likes or re-posts may be sufficient to establish a claim in libel, especially where such posts are directed at, and engaged with by, a targeted audience. In this case, the claimant was able to establish not only that his cousin’s tweets were libellous, but also that their publication amounted to a persistent and deliberate course of oppressive conduct towards him.

The court’s rulings on the jurisdictional elements of the case are also noteworthy:

• On the libel claim, the claimant could establish serious harm to his reputation in England and Wales on an inferential basis, despite the evidential difficulties in showing the precise geographic spread of the engagement with the defendant’s tweets.
• On the harassment claim, the judgment clarifies that materials published in England and Wales while the claimant was absent from the jurisdiction may form a wider course of conduct. The claimant must, however, experience the effects of the materials while present in the jurisdiction “more than to a minimal extent” – although in some cases the court might consider the context of the wider course of conduct, along with its impact on the claimant.

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Article written for Entertainment Law Review.