On 25 August 2023, the Court of Appeal Nicola Davies, Arnold and Warby LJJ) handed down judgment in Blake & ors v Fox  EWCA Civ 1000. The Court dismissed an appeal against Nicklin J’s findings in the High Court in respect to the natural and ordinary meaning of five (out of six) tweets regarding accusations of racism and paedophilia ( EWHC 3542 (KB)). This libel case provides useful analysis for distinguishing statements of fact from opinion and is a cautionary reminder against grouping statements together when there are multiple claimants.
On 1 October 2020, actor Laurence Fox criticised Sainsburys on Twitter for celebrating Black History Month (the “Sainsbury’s tweet”) and said that it promoted racial segregation and discrimination. In response, Nicola Thorp, Simon Blake and Colin Seymour separately tweeted on 4 October 2020 that Mr Fox was a “racist” (the “racist” tweets). That same day, Mr Fox responded to each of the claimants’ tweets by quote-tweeting their original tweet and calling them each a “paedophile” (the “paedophile” tweets). Mr Fox later deleted his tweets to the claimants. The claimants brought a defamation claim against Mr Fox who counterclaimed.
Mr Fox (the defendant and counterclaimant) appealed the decision, arguing that Nicklin J had erred in finding that the three “racist” tweets were statements of opinion while the three “paedophile” tweets were statements of fact, both of which were defamatory at common law.
Four issues were raised on appeal:
- Did Nicklin J err in finding that the three racist tweets were statements of opinion and the three “paedophile” tweets were statements of fact?
- If so, did Nicklin J err in determining the natural and ordinary meaning of the “paedophile” tweets and finding that they were defamatory at common law?
- Did Nicklin J err in refusing to define the term “racist”, on the basis that the three “racist” tweets were statements of opinion?
- Finally, if the “racist” tweets were statements of opinion, did Nicklin J err in replacing and potentially widening the claimants’ pleaded meaning?
Statements of fact or opinion
In relation to the first issue, the Court of Appeal held that Nicklin J was not wrong to find that the claimants’ “racist” tweets were statements of opinion. They rejected the notion that Nicklin J had taken a general approach and treated the claimants’ “racist” tweets as a collective. Moreover, they found that Nicklin J had not applied a mistaken presumption by classifying “racist” as one of those words “that almost always signify that they represent the person’s opinion”.
Warby LJ noted that
“In my opinion he was simply noting, as part of his assessment of the statements complained of, that in practice the word ‘racist’ tends to be used in an evaluative way. In doing so he was bringing to bear his own experience of the use of English. That is an inescapable part of any decision on the natural and ordinary meaning of words. It is consistent with the principle that judges should ‘have regard to’ the impression which the offending statement makes on them. A judge commits no error of law in doing this so long as he keeps well in mind that the essential touchstone is the reaction of the ordinary reader of the particular publication.” 
The Court of Appeal agreed that the “racist” tweets made by Mr Blake and Mr Seymour were statements of opinion as they were “classic instances of the genre”. This was evidenced by the fact they had quote-tweeted Mr Fox’s original Sainsbury’s tweet. They held that Ms Thorp’s “racist” tweet fell into a different category. While it may be analysed as a statement of fact, it would make little difference to the case as she failed to satisfy s 3(3) of the Defamation Act 2013 and therefore could not plead the defence of honest opinion.
Natural and ordinary meaning of the “paedophile” tweets
Nicklin J had rejected the contention that the ordinary reasonable reader would have understood the “paedophile” tweets to be a rebuttal to the accusation of racism as opposed to an allegation that the claimants were paedophiles. On appeal, Mr Fox’s counsel argued that Nicklin J took a “condescending view of the attributes of the ordinary reader”. Warby LJ disagreed and held that
“The judge was not saying in those passages that ordinary reasonable users of Twitter, or those who read Mr Fox’s tweets, are incapable of undertaking the process of pausing to consider and analyse the tweets, or unable to see rhetoric and sarcasm when it presents itself… In these passages he was doing no more than applying to the facts of this case some recognised principles, including the proposition that judges should take account of the fact that social media are not generally provided for mature reflection by their readers but for consumption at some speed.” 
The Court of Appeal noted that a distinction must be made between the characteristics of the medium and those of the readership. While tweets are often read quickly, that does not mean their readers are “careless, superficial or unsophisticated”. Account should be taken for the length and form of the message. Regardless, this bared little significance on Mr Fox’s tweets to Mr Blake and Mr Seymour as they were “short and pithy”, not carefully crafted or considered. It was therefore not obvious to the reader that Mr Fox was making a rhetorical point. The Court of Appeal agreed that “if Mr Fox had wanted to say ‘I am no more a racist than you are a paedophile’ he could have done so”.
In regard to Mr Fox’s response to Ms Thorp’s “racist” tweet, the Court of Appeal took a different view to Nicklin J. Fox’s “paedophile” tweet to Ms Thorp was significantly different to the other two “paedophile” tweets. It directly mimicked Ms Thorp’s tweet to Mr Fox with the exception of substituting the word “paedophile” for “racist”. The Court of Appeal acknowledged that Nicklin J’s conclusions may have been “affected by considering the paedophile tweets as a package, or at any rate without sufficiently concentrating on their particularities”.
Warby LJ held that
“Mr Fox was not using the word ‘paedophile’ literally, to accuse Ms Thorp of being a paedophile; he was using that word rhetorically as a way of expressing his strong objection to being called a racist. Used in that way it was not defamatory.” 
Refusing to define the term “racist”
The Court of Appeal found that it was “entirely legitimate” for Nicklin J to refuse to define the term “racist”. They held that even if the allegation of racism was one of fact, it would not create or increase the need to define the term. Equally, just because both parties pleaded competing meanings does not impose a duty on the judge to provide a definition. Warby LJ noted that
“The judge’s task was to decide the natural and ordinary meaning of the particular words complained of, and whether a term needs definition as part of that process is a fact-sensitive question that turns on the words themselves. The meaning conveyed by a statement can be more or less clear, defined or specific. It depends on the impact the words would have, read in their context, and not on the parties’ pleaded cases.” 
Replacing the pleaded meaning of the “racist” tweets made by the claimant
The Court of Appeal emphasised that the court is “not bound by the pleadings of the parties” and that they are able to find a different meaning to those put forward by the parties. Warby LJ held that
“In this case, the judge evidently concluded that the meaning of the claimants’ tweets was not as limited as they sought to content. The claimants were not just saying that Mr Fox’s Sainsbury’s tweet shows him to be a racist (or in Ms Thorp’s case, that this and other public statements had shown this). They were making the broader assertion that he was, generally, ‘a racist’. It was clearly open to the judge to reach that conclusion.” 
This is a rare appeal on determining the natural and ordinary meaning of tweets. It highlights the importance of considering the medium, in this instance Twitter, while not making assumptions about the readership. Context is just as important to consider when dealing with statements made on social media.
These were unusual facts with multiple claimants, making the case vulnerable to grouping statements together. The Court of Appeal noted the importance of observing the particularities of individual tweets, especially when dealing with multiple claimants.
Floyd Alexander-Hunt is an LLM candidate at Queen Mary University London and a research assistant at King’s College London.