Facebook’s Mark Zuckerberg once famously described Twitter as being like a clown car that crashed in a gold-mine. Their latest antics, involving their lawyers at Bristows, include writing me one of the worst ‘libel’ letters I have ever seen. The specific lawyers on the case are Alex Keenlyside and Robert Graham. I reproduce the relevant parts below. Then I school them on procedure and more importantly the substantive facts of their case.

I received a letter just past 8pm on Friday night. It is a trashy tactic solicitors use that works with many people. However, although I do not practice as a solicitor I have passed the exams (LL.M LPC Commendation) and have nearly 9 years experience as a McKenzie Friend. I have written the pleadings of multiple libel cases so late night letters are less impressive to me, especially given the obvious, negligent and improper failure in this one to comply with the relevant UK law, the Civil Procedure Rules.

Much of the letter is a request for information. Twitter asks for court documents relating to the recent court case in which Esther Baker was found liable for racist harassment because of various proposed legal claims against it, in multiple jurisdictions. The last paragraph however is a demand I remove an article, which is said to be defamatory. Twitter are concerned with my article of 14 April 2020, headlined, “Twitter’s Del Harvey / Alison Shea and Vijay Gadde Openly Back Child Rape Stalker and Anti-Semite Racist”. So far they have not sought to challenge my article, “Labour’s Secret Deal with Twitter and Facebook to Surveil its own members”.

The article complained of referred to Twitter’s decision not to remove proven racist stalker Esther Baker’s account nor the tweets held by a judge to be racist stalking. The same article complained of Twitter’s failure to remove anti-Semitic material posted by a man named Alan Goodwin. As previously covered on MHN, Esther Baker has been successfully sued by former MP John Hemming and a child abuse victim who MHN is anonymising as a courtesy. Twitter, of course, has rules against racism and ‘targeted harassment’ so one would think in light of the lengthy judgement to the effect that Baker engaged in racist targeted harassment over a period of years the issue would be a no-brainer. Nope. “Clown Car”!

Unfortunately, Esther Baker’s tweets – all those that were found to be harassment – remain up. So do many disturbing, anti-Semitic or hateful tweets from her friends and supporters like Alan Goodwin. Naturally, I drew the matter to Twitter’s attention. I sent them a copy of the judgement, from which it is clear what tweets were complained of. There were 23 – a course of conduct covering a space of years. I received a strange reply from Twitter stating they only found one objectionable tweet. They did invite further information so I sent them a letter with all of the URLs of the tweets carefully cross-referenced with the paragraphs of the judgement.

Twitter has repeatedly made clear via a number of gushing puff pieces in various media that the person who has the final word on blocking and tweet removal, even of Donald Trump’s Tweets, is Vijaya Gadde, Twitter’s Legal, Policy and Trust & Safety Lead (archive). The other person with key responsibility is Del Harvey (née Alison Shea) VP, Twitter Trust & Safety (archive).

Naturally, as this has been going on for years I decided to escalate. I sent an inquiry to Vijaya and Del making it clear I asked them to look into it and that I would seek to hold her accountable for whatever decision was made. The emails made clear Vijaya and other individuals would be named in my article.

In line with normal media practice and with slight annoyance at their (well known) oracular and incomplete statements I gave them a relatively short time. I sent them a query followed by a rough early draft and said – “The deadline to reply has been changed to 5pm Tuesday 14 April 2020 BST because of the holiday to allow a full working day in the UK and Ireland as well as the US. I remain willing to extend the deadline if any facts are disputed.”. I also offered an extension of time if they wanted to investigate.

The email was read by whoever operates Twitter’s litigation email, viewed around 64 times according to the tracking tool I use and they chose not to reply by the deadline nor ask for more time. I published and put them on notice. Only then, after the deadline and after publication, did I receive protest and a promise to respond by the end of that week. I duly added that as an update it. Twitter did not hit their own promised deadline.

Two weeks later I received the letter quoted above asking for significant amounts of further information. I consider this extraordinary. Many people have criticised Twitter for political bias. Many experiences of banning or being banned involved a few people clicking on a slightly ill-judged or right-of-centre remark. Even Donald Trump was suspended at one point.

In this case though, for some reason, Twitter wanted not only any additional court Orders but trial documents. They did not just ask to see the Order dismissing Baker’s application for permission to appeal they wanted the Scott Schedule. Since when have Twitter cared about context when dealing with complaints? Their abuse reporting form does not even have a facility for complainants to upload supporting documents. Why in this case?

In particular, Twitter wanted a document called a “Scott Schedule”, which is basically a list of the allegations against Baker in a spreadsheet. This would seem to be of no use because it is superseded by the detailed judgement setting out which allegations were found, which failed and why. Twitter already have the full court judgement (which was upheld on appeal). Twitter already have enough information to consider matters and two weeks is far than enough time to do so – an eternity in the world of social media.

In this case, are they seriously going to go behind the court decision and challenge the reasoning of two judges? It goes back to my question. Do you, company-that-operates-in-this-country accept the decisions of its courts? The court specifically found Baker engaged in targeted harassment over a period of years in relation to a vulnerable victim. That victim has lawyers and has repeatedly stated that legal papers are being prepared for a claim against Twitter.

Turning back to the threat of Defamation proceedings in Twitter’s letter to me it is clearly and improperly incompliant with UK law. In the UK before suing for libel you must comply with a set of rules called the Pre-Action Protocol for Media and Communications Claims. This has mandatory contents per point 3.2 –

“3.2 Letter of Claim (Defamation, Slander and Malicious Falsehood)
The Letter of Claim should additionally include the following information—

• sufficient details to identify the specific publication which contained the statement complained of;
• the statement complained of and, if known, the date of publication; where possible, a copy or transcript of the statement complained of should be enclosed and, in the case of slander, where and in what circumstances as far as known the statement complained of was spoken;
• the imputation the Claimant contends was conveyed by the statement complained of;
• factual inaccuracies or unsupportable comment within the statement complained of; the Claimant should give a sufficient explanation to enable the Defendant to appreciate why the statement is inaccurate or unsupportable;
• for defamation claims, how or why the Claimant says that the statement complained of has caused or is likely to cause serious harm for the purposes of section 1 Defamation Act 2013 including, when the Claimant is a body that trades for profit, such details as are available of the nature and value of the serious financial loss which the Claimant says has been caused or is likely to be caused by publication of the statement complained of;
• for slander or malicious falsehood claims, how or why the Claimant says that publication of the statement complained of has caused, or is likely to cause, special damage or pecuniary loss, or why publication of the statement is actionable without proof of actual loss; and,
• in malicious falsehood claims an outline of the Claimant’s case with regard to malice.
• where relevant, the Letter of Claim should also include—
• any facts or matters which make the Claimant identifiable from the statement complained of; and,
• details of any special facts relevant to the interpretation of the statement complained of and/or any particular damage caused by the statement complained of.”

Points largely omitted from the single, paltry and inadequate paragraph in their letter. That is quite a few things left out and appears to fall short of even the conduct I mocked as done by a ‘legal intern’ in my previous article. Even the identity of the claimant, a basic point, is not properly stated. The letter refers to defamed individual members of Twitter staff but the only named client / claimant is Twitter and as a corporation they can only be defamed if they can show that “caused or is likely to cause the body serious financial loss” pursuant to s1 (2) Defamation Act 2013. The protocol requires those details be set out, including the, “nature and value” of the loss.

However, assuming they corrected their procedural flaws and named a natural person like Vijaya Gadde as a Claimant then I beg to differ with their assessment of the likely outcome. I am confident to aver defences of Truth and Publication on a Matter of Public Interest pursuant to s2 and s4 Defamation Act 2013, albeit differing slightly on meaning.

The letter from Bristows is incorrect about the law. Whether or not an allegation was put to the subject is relevant to an s4 defence and other technical points.

I headlined the article describing Esther Baker as a, “Child Rape Stalker” because she not only stalked a child rape victim but used circumstances connected to the rape in the stalking (for example by claiming the victim lied). Baker was found to be, “vindictive, obsessive and predictable” as well as, “particularly malevolent”.

I described Alan Goodwin as an “anti-Semite Racist” for his numerous tweets on the topic of, well, Jews. Jews he calls “nepotistic”, Jews he says do not readily report child abuse, Jews whose government is, he suggests, conspiring to conceal child abuse.

I then stated that Baker and Goodwin were being backed by Twitter given its failure to enforce its stated rules and positions. It is worth reminding ourselves of a few supposed Twitter rules. Firstly, there is the Hateful Conduct Policy (archive) –

“Inciting fear about a protected category
We prohibit targeting individuals with content intended to incite fear or spread fearful stereotypes about a protected category, including asserting that members of a protected category are more likely to take part in dangerous or illegal activities, e.g., “all [religious group] are terrorists”.”

Obviously, Miele Employee Alan Goodwin’s tweets do exactly that, for example in the middle tweet displayed.

“Repeated and/or non-consensual slurs, epithets, racist and sexist tropes, or other content that degrades someone
We prohibit targeting individuals with repeated slurs, tropes or other content that intends to dehumanize, degrade or reinforce negative or harmful stereotypes about a protected category.”

Yet, Twitter continue to publish the tweets complained of by Mr Goodwin, without any action at all, despite complaints and his actions over a period of years.

Twitter also has an Abusive Behaviour Policy (archive) –

“You may not engage in the targeted harassment of someone, or incite other people to do so.”

Twitter at this time has chosen to continue to publish the harassing tweets and not to ban the perpetrator of the ‘targeted harassment’.

I went on to identify Vijaya Gadde and Del Harvey / Alison Shea as decision makers given their public holding themselves out as the final word at Twitter on such matters. I pointed to efforts to put them on notice and as responsible for the decision to enforce its rules (and thence, to ‘back’) the behaviour.

They clearly are on notice now and have been since my letter of 10 April 2020. The solicitor’s letter from Bristows shows these facts have been considered. The tweets so far remain in place, the accounts unbanned. Twitter, and its executives, have chosen to ‘back’ the behaviour in the natural and ordinary meaning of the word. An s2 Defence clearly, on its face, stands.

Twitter has been repeatedly and publicly accused of political bias and failing to enforce its rules fairly on a variety of topics. Those accusers include the President of the United States of America, Donald Trump, feminists and a variety of others. The rules themselves are, to some minds, likely to skew the political dialogue – those who oppose immigration may be limited in setting out their reasons, for example.

There is a clear public interest in the case. The allegations were put. There was no reply before publication. There is particular concern that Baker is a Labour Party member who has in the past been backed by Tom Watson (former MP, former Deputy Party Leader) and Jess Phillips MP (Shadow Minister for Domestic Violence and Safeguarding, ironically). An s4 Defence clearly on its face, stands.

So I am calling Twitter publicly on it. You have made the threat. Now back it up and lose or be seen publicly to blink. If Twitter knowingly allows abuse of the vulnerable contrary to its own stated rules then it and the staff concerned obviously accept moral responsibility as well as possibly risking legal responsibility for the consequences. In that sense, the staff who make those choices are abusers in the dictionary sense of ‘treat in a harmful, injurious or offensive way’.

The issue also helpfully underlines the, “Clown Car” point. It is a total failure of corporate governance because it reflects the company going out of process and deviating from its policies for no clear reason. Twitter has developed its specific rules for user conduct which it has presented to governments, society in general and its shareholders.

Well managed companies as a general rule try to make simple, clear policies and processes and then follow them. Where there is no ambiguity – as with Goodwin’s Tweets, as with the Baker judgement – then most companies would simply apply their rules. Breaches the hateful conduct rules? Check. For a period of years? Check. Costing us money, time and reputation? Ban.

Part of the abuser accountability process in modern society is to contact other business and companies associated with the wrongdoer and invite their comment. I fail to see how the facts of this case can be disputed but if they can be, Bristows on Twitter’s behalf have failed to followed the required procedure to do so. If Twitter try to follow the English litigation process with the same shoddy and arrogant approach they take to regulation on their own platform, I see no reason whatsoever to stop.

I did however, make Twitter one open offer of settlement. I said that they could not possibly deny backing these behaviours unless they banned three accounts I had identified of concern and removed the tweets of concern. However, in the interests of the victims of Esther Baker I would remove my article of 14th if they banned the accounts and kept them banned. I would remain free to criticise them if they engaged in this type of behaviour in future. Twitter ignored the request in the face of all commercial sense.

As I pointed out in my recent article about Labour’s sinister monitoring of its members, even Labour worked out how to scan cross-referencing a favoured attribute with cuss words to identify members being rude to Right-wing Labour MPs. Twitter was able to easily identify and ban thousands of accounts for the NPC meme (archive). Where the Jews are concerned however, things seem to be considerably less robust.

The Times of Israel reported that Jack Dorsey had consulted a far right figure, Ali Akbar, who is concerned about “Jewish supremacy” (archive). In response, Dorsey stated, “I listen, and I think that’s the most important thing. I was introduced to him by a friend, and you know, he’s got interesting points. I don’t obviously agree with most. But, I think the perspective is interesting”. Dorsey has gone beyond mere online reading however and has been pictured with his arm around Mr Ali (archive).

There are many examples in which it seems that anti-Semitic hate is treated differently and more favourably than other types of hate speech. When alleging discrimination, it is generally necessary to have a comparator. Comparing this case with that of Laura Loomer provides a helpful illustration. Loomer was banned for the following tweet – “Ilhan is pro Sharia Ilhan is pro-FGM Under Sharia, homosexuals are oppressed & killed. Women are abused & forced to wear the hijab. Ilhan is anti Jewish” (archive).

Even if Loomer’s statements are false, they are no more serious than Goodwin’s manifestly untrue allegations about Israel and a named UK Government Minister. The difference appears to be that in the Loomer’s case the perpetrator was Jewish and in the case of Goodwin the victims were Jewish.

Another comparator to Loomer is Lara Witt, who uses Twitter under the name of @FemmeFeministe. As set out in my article, “Racist Freelance “Journalist” Lara Witt, Terrorism and the Burning Corpses of Jewish Children”, Witt even criticised Israel for complaining about rocket attacks! As of today, her account remains live (archive) although the tweet has disappeared.

Twitter here has gone wildly out of process to the extent that executives are in effect fighting to protect a series of statements that, for example, the Israeli Government and a British Cabinet Minister engaged in a paedophile conspiracy. They are fighting to protect heinous abuse of a victim who was sodomised as a 5-year-old child by a Catholic Priest. The findings in the court case were civil, but the judge did remark in each point that the test for criminal liability was met.

So, I am not dreadfully concerned about these threats of litigation. Instead, we are moving forward. Moving forward with repeating the (True) allegations about Vijaya and holding her accountable across her professional and personal life. Moving forward with raising accountability concerns with shareholders. Moving forward in due course with our own GDPR and harassment claims.

I did send Twitter the required response. About 7 pages mostly pointing out the mandatory matters omitted from their letter. They have yet to respond to my request for information.

Let’s test that in Court then, shall we ladies and gentlemen?