The website was set up in 2012 (and was the subject of contested Nominet proceedings governing the use of the trade mark ‘Optical Express’ – which Ms Rodoy won). The social media groups were set up later. Ms Rodoy continues to operate them now. Ms Rodoy was undoubtedly a thorn in the side of Optical Express, and at some point it decided to use a stock paragraph to send out in response to complainants who had mentioned Ms Rodoy or OERML in their complaint:-
“The individual concerned is a vexatious individual, who is a self-confessed and known fraudster, currently using the name Sasha Rodoy, however she has previously been known as Sasha (Susan) Hutchinson. The individual was not treated by, and has never been a patient of, Optical Express. [The/This] person unfortunately does troll Optical Express and many of our team online. In the past, this trolling has been to such an extent that we have had to involve the police in the interest of employee safety.”
Ms Rodoy sued Optical Express over the publication of these words in emails to four of its customers, James Marshall, Colin Hind, Robert Beaton, and Phoebe Arthur (though at the time of suing, she did not know their names). At a preliminary hearing (Rodoy v Optical Express Ltd [2024] EWHC 1499 (KB)), the meaning of these words was held by HHJ (Jaron) Lewis to be:-
- Ms Rodoy is a fraudster. Her dishonesty extends to using different names or aliases.
- Ms Rodoy trolls Optical Express and many of its staff online.
- At times, the trolling has been to such an extent that there were reasonable grounds to suspect that she was placing the safety of staff members at risk.
Optical Express ran a comprehensive challenge to Ms Rodoy’s claim that she had suffered serious harm to her reputation, as well as advancing two substantive defences: that the allegations were substantially true (pursuant to section 2 of the Defamation Act 2013), and that the allegations were published on an occasion of qualified privilege, and had not been done so maliciously (meaning the qualified privilege defence was not defeated).
Serious harm
Ms Rodoy found out about the emails in documents provided to her in answer to a data subject access request (in redacted form). Ms Rodoy, knowing about the emails but not knowing who they had been sent to, sued Optical Express and then later made applications for specific disclosure to obtain unredacted copies. Once she had the details of the recipients, her solicitors contacted them, and most of them later gave evidence in the proceedings. Griffiths J set out their evidence separately (as each publication is separate and serious harm cannot be ‘aggregated’ between different publications), but it was broadly similar. The recipients had had laser eye surgery with Optical Express, been unhappy with the results and/or customer service, discovered OERML, and cited it in one or more complaints. This prompted Optical Express to send emails containing the allegations. The recipients gave evidence, broadly, that they were shocked to receive the allegations from Optical Express and, until contacted by Ms Rodoy’s solicitors who convinced them of the falsity of the allegations, believed them.
Griffiths J held that this meant serious harm to Ms Rodoy’s reputation had been suffered.
Truth
Meaning 1: Fraudster and aliases
Optical Express argued that Ms Rodoy was a fraudster, and that her dishonesty extended to using different names or aliases. This is where the case takes a somewhat salacious turn. Optical Express’s case was not that the operation of OERML was fraudulent (as some will characterise similar ‘attack’ websites).
In around 1993, Ms Rodoy – while a mature student – agreed to help an estranged wife ‘honeytrap’ her husband to obtain evidence for her grounds for divorce. The husband was a cross dresser who had taken out a ‘personal ad’ looking for a female partner. Ms Rodoy arranged to meet with him and obtain answers to questions which the wife could use in the divorce. Afterwards, Ms Rodoy embarked on a media tour speaking about her evidence gathering, including claiming that she was operating a new type of private investigative business “specialising in tracking and trapping philandering husbands” named ‘Decoy Dolls’. No such business existed, though Ms Rodoy did employ several friends to pose as clients and ‘Dolls’. Griffths J found that Ms Rodoy was paid handsomely for her media appearances, at which she embellished her ‘Decoy Dolls’ work very significantly over a period of many years (as late as 1999).
While Ms Rodoy described this behaviour as a ‘prank’, Griffiths J took a different view. He held:-
“Ms Rodoy’s conduct was, I find, dishonest as well as reprehensible. It was cynical and amoral. The dishonesty was sustained over a long period. She fraudulently procured very large sums of money by an elaborate deception. Notwithstanding the thrill and pleasure she gained from tricking journalists into paying her money for the lies, and her delight in her own cleverness in pulling it off, her principal and constant motive at this point was making money. She could, at that time, certainly be described truthfully as “a fraudster”. She was a fraudster committing fraud; dishonestly fabricating a scam for money, and going to great lengths (including the involvement of others) to do it. This was no high spirited prank. Nor was it a youthful indiscretion.”
However, the allegations had been held to mean that “Ms Rodoy is a fraudster” – in the present tense. Griffiths J turned to whether the Decoy Dolls fraud some 20+ years previously could justify the present tense allegation. It appeared to be agreed that Ms Rodoy had not operated any fraud or scam since Decoy Dolls, and Griffiths J acknowledged that “anyone can change for the better”. However, he went on to say that “Ms Rodoy, however, made it quite clear in her evidence that she did not regret what she did and saw absolutely nothing wrong with it. She did not repudiate her actions.”. This was the basis on which he found that she was the “same person” as she was during the Decoy Dolls fraud, and therefore the allegation she is a fraudster was substantially true.
Griffiths J then addressed the aliases allegation. He held that as the other names mentioned in the allegations were not incorporated into the defamatory meanings, Optical Express did not have to establish that ‘Susan Hutchinson’ or ‘Sasha Hutchinson’ were used as part of the fraud, but could rely on other names. Ms Rodoy’s use of fake names during the Decoy Dolls fraud was well-documented, and so this was held to be substantially true.
Meaning 2: trolling staff online
Before turning to whether the meaning was substantially true, Griffiths J took the unusual step of setting out his understanding of the meaning found by HHJ Lewis, who, Griffiths J says, had held that ‘trolling’ needed no further explanation. This involved referring to the parties’ submissions on what trolling was as well as the dictionary. In referring to the dictionary, Griffiths J went to great lengths to explain why he was not falling into the same trap as the first instance judge in Stocker v Stocker [2019] UKSC 17. Griffiths J then constructed the ‘elements’ of an offence of trolling: the ‘actus reus’ being the publication of the posts themselves, and the ‘mens rea’ being the intent behind them to offend, provoke, or upset.
Ms Rodoy’s conduct towards Optical Express staff was laid bare by Griffiths J. In summary, he found that Ms Rodoy had:-
- published abusive content online;
- made telephone calls to Optical Express in which she was unpleasant to staff;
- attended a promotional event at an Optical Express store to disrupt it;
- attended a public employment tribunal hearing involving Optical Express to report on it on OERML later, and in particular by reference to an employee’s physical disability;
- obtained a family photo from an employee’s personal Facebook page and republished it on OERML;
- in an email to an employee concerning another employee, posted “a large, lurid image of a severed pig’s head with an apple in its mouth and blood around its severed neck. It was a real pig’s head; not a cartoon or anything of that sort”;
- after being spoken to by the police about the pig’s head image, posted the same image and excerpt from the email online;
- posted under a photo of an employee’s baby on Facebook, saying ‘better hope he doesn’t turn out like his father’;
- adopted the name ‘Suriya’ to use Optical Express’s online ‘chat’ feature to provoke staff operating the feature; and
- ridiculed the former careers of sales staff to belittle them;
As a consequence, Griffiths J found that it was substantially true that Ms Rodoy had trolled Optical Express staff online.
Meaning 3: the trolling was so bad that there are grounds to suspect it put staff safety at risk
Griffiths J focussed here on the parts of Ms Rodoy’s conduct towards the Hannan family (who received the ‘pig head’ email and whose baby picture received Ms Rodoy’s comment). Ms Rodoy had also posted Dr Hannan’s mobile and office phone numbers and his home address on OERML. Griffiths J decided that this appeared to be an invitation for readers of OERML to contact or visit Dr Hannan, and the readers of OERML were already predisposed to be angry about Optical Express generally (in part because of Ms Rodoy’s commentary about it).
Griffiths J dealt with this very briefly, relying in part on police involvement, and found that it was also substantially true.
Qualified privilege
Having found that the allegations were substantially true, Griffiths J did not need to address qualified privilege at all, but did so briefly anyway.
Griffiths J held that the relationship between eye care provider and patient meant that the publications occurred on an occasion of qualified privilege – there was a reciprocal interest in the giving and receiving of the defamatory allegations. He rejected Ms Rodoy’s submission that the parts of the email containing the allegations were actually irrelevant to the relationship, and so should not be protected by qualified privilege.
He went on to find that the author of the stock paragraph containing the allegations reasonably believed the allegations to be true, and so did not authorise the publication of it maliciously.
Comment
This judgment has some important lessons for claimants and defendants, and plenty of interest for the general public. Of interest to media lawyers are the issues sounded in the defamatory meanings, the establishment of serious harm, and the substantial truth defence.
Meaning
The judgment is a perfect encapsulation of the media lawyers’ refrain that small variations in the meaning found by a judge at a preliminary stage can have extremely serious consequences for the prospects of a claimant’s case at trial. If the meaning had been tied to the use of Susan/Hutchinson, then presumably Optical Express would not have been able to prove the substantial truth that Ms Rodoy’s fraud included the use of those aliases (because it did not).
It seems rather odd at first blush that the Decoy Dolls aliases should be determinative of the issue in circumstances where other aliases were mentioned in the publications, but the Decoy Dolls ones were not.
Serious harm
Proving serious harm can be difficult at the best of times. It is even more difficult in cases where allegations are made to very few people, none of whom are known to or closely connected with the claimant. Usually, the person libelled will never find out about it, much less be able to rely on those people to give evidence.
Ms Rodoy did not know the people who received the emails, and had had no meaningful interaction with them. Her case initially was based on inference: i.e. someone who received these allegations would be bound to think less of me and my reputation was bound to be seriously harmed as a consequence. While serious harm is not a numbers game, in cases of one publication being transmitted to very many people (a social media post or a newspaper article for example), it is much easier to establish that enough people will have believed the allegations to establish serious harm (or the likelihood of it). In this case, however, each publication was distinct and went to only one person. This was an example of excellent lawyering, pivoting the case from an inferential one at the point of issue to an ‘actual serious harm’ one later, once the readers of the emails had been identified.
Substantial truth
Unfortunately, the entire claim actually turned on Ms Rodoy herself – or rather her evidence that she was not remorseful for and did not regret having swindled and defrauded many journalists throughout the 1990s. The way Griffiths J has framed the judgment, each finding on substantial truth after the initial ‘fraudster’ one is parasitic on his finding that Ms Rodoy was still the same person and still a fraudster.
Whether, if Ms Rodoy had shown contrition and remorse for her previous behaviour, she would have actually won the claim is hard to know: the qualified privilege point may have been viewed by Griffiths J through a very different lens if he had found she was unfairly labelled a fraudster 20 years on from the fraud. It may also be that having dissected the evidence and come to different conclusions on Ms Rodoy’s character generally, Griffiths J would be less inclined to find that the author of the stock paragraph’s belief about Ms Rodoy was reasonable.
This post originally appeared on the Brett Wilson Media and Communications Blog and is reproduced with permission and thanks
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