On 13 October 2023, Mr Justice Julian Knowles handed down judgement in Aaronson v Stones [2023] EWHC 2399 (KB). The Judge found for the claimant Jack Aaronson, an adult entertainment entrepreneur, in a libel claim against the defendant Marcus Stones, a former adult entertainer, who had published several tweets and featured in a YouTube video alleging the claimant was a serial rapist.

This case provides useful commentary on the level of evidence required to meet the standard of proof in civil cases where there are allegations of serious criminality. Moreover, it serves as a caution against relying on the public interest defence without clear contextual evidence, particularly in circumstances where rape is alleged against a named individual who is not a public figure.

Background

The claimant Jack Aaronson (industry name “Dominic Ford”), is a prominent figure in the gay pornography industry and the CEO and creator of “Just For Fans” – a platform for adult film performers to interact with their fans and share explicit content for a fee.

From April 2018 until June 2020, the defendant Marcus Stones (industry name “Mickey Taylor”) operated a performer account and fan page on the Just For Fans website.

Between 14 June 2020 and 28 June 2020, the defendant posted multiple tweets alleging instances of rape, serial rape, bribery and extortion on the part of the claimant. In particular, that the claimant had raped a fellow model, Cooper Tennent (industry name “Tannor Reed”). The defendant also appeared in a YouTube interview on March 2021, in which he reiterated allegations of rape against the claimant.

The central issue was whether the defendant’s allegations were true and whether they constituted a matter of public interest. The claimant contended that the accusations had caused serious harm to his reputation as they painted him as a sexual predator, while the defendant argued that the statements were substantially true and were in the public interest as they exposed the abuse and exploitation present in the adult entertainment industry.

Judgment

The Judge outlined five issues for determination [193], including:

  1. The meaning of the words complained of;
  2. Serious harm (s 1, Defamation Act 2013);
  3. The defence of substantial truth (s 2);
  4. The defence of publication on a matter of public interest (s 4); and
  5. Quantum of damages.

The meaning of the words

In relation to the first issue, the Judge held that the natural and ordinary meaning of the word rape (which encompasses ‘rape’, ‘raping’, ‘raped’, and ‘rapist’ across multiple tweets) should be read by the hypothetical reasonable reader to import “a requirement of a lack of belief in consent on the part of the perpetrator, and not simply an absence of consent in fact on the part of the complainant” [215].

The Judge concluded

“In my judgment the hypothetical reasonable reader would understand the allegation of rape to mean (a) that the perpetrator had intercourse with someone who was not consenting and (b) whom they did not reasonably believe was consenting. I include the need for reasonableness because I consider that the modern hypothetical reasonable reader would not consider it unjust to find someone guilty of rape when they entertained an honest but wholly unreasonable belief in the complainant’s consent when the complainant was not consenting.” [217]

The Judge then outlined the standard of proof necessary for the defendant to establish truth as a defence.

“It follows that, on the mental element of rape as it would be understood by the hypothetical reasonable reader, the Defendant must prove on a balance of probabilities: either (a) that the Claimant did not believe that Mr Tennent was consenting to penetrative sex throughout the act of penetration. If that is proved, then the offence of rape is made out; or (b) if an absence of belief by the Claimant is not proved, that any such belief was unreasonable. If that is proved then, again, the offence of rape is made out.” [220]

While the standard of proof in a civil case is on the balance of probabilities, Julian Knowles J referred to case law to determine the proper approach to take if allegations are of a criminal nature. In Depp II v News Group Newspapers Ltd [2020] EWHC 2911 (QB) Nicol J outlined that where there is an allegation of serious criminality, clear evidence is required.

In Depp II, Nicol J stated [42]

“Although there is a single and unvarying standard of proof in civil proceedings, the evidence which is required to satisfy it may vary according to the circumstances. In Re D [2008] 1 WLR 1499 at [27] Lord Carswell approved what had been said by Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468 at [62] who had said, ‘Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.’” [222]

Serious harm

The Judge found for the claimant on this issue, agreeing with counsel that the claimant’s case on serious harm had not been “meaningfully challenged” [231]. All but one of the tweets and statements were considered Chase Level 1, bar the 20 June Tweet, which was considered to be Chase Level 2. The 20 June Tweet read: “Also. Dominics lawyer is also a ex porn director who doesn’t deal in rape allegations but licensing law” [21].

The Judge held that the claimant had

“convincingly established his case that each of the Defendant’s publications caused or was likely to cause him serious harm. That is because of (a) the extremely serious nature of: the allegation of serial rape of more than three people, the allegation of the rape of Mr Tennent, and the Chase Level 2 meaning that there were reasonable grounds to suspect the Claimant of rape. There can be few more serious allegations of criminal behaviour; (b) the related allegation that the context for the Claimant’s rapes had been his position within the gay pornography industry, which he had abused, and which therefore exacerbated the seriousness of the Defendant’s accusations; (c) the extensive nature of the publication to the Defendant’s many thousands of Twitter followers; (d) the concrete evidence of the reaction of some of those who viewed the tweets; and (e) the Website’s loss of revenue, as evidenced by the Claimant.” [232]

Substantial truth

The Judge highlighted the distinction between proving serial rape (as alleged in eight of the publications) and proving one instance of rape (as communicated in three of the publications). He quickly dismissed the former, noting that “it is clear from the evidence that I set out at length earlier that the Defendant was not able to advance a positive case of rape of any person other than Mr Tennent. He acknowledged his case rested on what Mr Tennent said had happened to him” [241].

The Judge examined the evidence provided by the claimant, defendant and Mr Tennent. The evidence concerned Mr Tennent and the claimant’s previous consensual encounters, their working relationship and the nuances of two instances of alleged rape (one of which was recorded on a 3D filming device and presented at trial – “the 3D video”).

To caveat his assessment of the evidence, Julian Knowles J highlighted three key principles to apply: (1) the need to avoid stereotyping in assessing alleged victims’ reactions to sexual offences [244]; (2) the “fallability of human memory” [247]; and (3) that “a witness’s demeanour when giving evidence is not a reliable guide – and in fact is the least reliable guide – to whether their evidence is accurate” [253].

The main piece of evidence was the 3D video, which both sides contended proved their case. Ultimately, the Judge found for the claimant assessing that

“I find that the Defendant has not proved by clear evidence that consent was withdrawn by Mr Tennent at any stage. There is no evidence to support such a conclusion beyond Mr Tennent’s assertion, and as I have shown, his recollection of events is faulty in a number of respects.” [279]

Public interest

In perhaps the most interesting part of the case, the defendant positioned many of his statements in the context of the #MeToo and Black Lives Matter movements; and argued that publication was in the public interest of exposing “rape, sexual assault, exploitation and abuse in the adult entertainment industry” [40].

Using the principles outlined in Banks v Cadwalladr [2022] EMLR 21 [100]-[135], the Judge considered three questions relevant to establishing the public interest defence: (1) Was the statement complained of on a matter of public interest, or did it form part of such a statement?; (2) If so, did the defendant believe that publishing the statement complained of was in the public interest? (3) If so, was that belief reasonable?

On the first question, the Judge drew parallels to ZXC v Bloomberg LP [2022] AC 1158 which established, as a starting point, that a person under criminal investigation has a reasonable expectation of privacy. He noted that while there was no criminal investigation in this matter, ZXC was still relevant.

“I obviously recognise the distinction between the cause of action in ZXC and defamation, and also that the Claimant was not under investigation here. But I think that case does illustrate, in a general way, the sensitivities involved in publicly accusing someone of a criminal offence, and the damage that can be caused, and it suggests that I need to scrutinise with care the suggested public interest in the Defendant’s repeated public accusations that the Claimant was a serial rapist.” [339]

In addition, the Judge highlighted that the claimant is not a public figure and that the defendant failed to establish the “industry connection” to his tweets accusing the claimant of rape [345]. He held that

“Viewed objectively (per Doyle), they were little more than a public, specific and targeted attack on the Claimant; the allegations were not, for example, contextualised as illustrative examples of a generally recognised problem of rape and abuse in the adult entertainment industry.” [345]

The Judge emphasised that the discussion of rape and sexual abuse in any industry is likely to be a matter of public interest, however public accusations of rape against a named individual is generally not [344].

On the second question, the defendant’s admissions in cross-examination ruled out a number of the publications being considered in the public interest [359]. In respect of the other publications, the Judge was not satisfied with the failure to give “specific evidence” or “proper explanation” [361] on the public interest beyond “a general assertion” [360].

On the third question, the Judge recounted portions of the evidence and cross-examination which dealt with the defendant’s role as a quasi-reporter, or doing a “reportery[sic] kind of role” [385]. Knowles J highlighted multiple reasons why the defendant did not believe the publications were in the public interest, including the defendant’s “axe to grind” [391], a lack of journalistic standards (including verifying the claims) [402], failure to put the story to the claimant [407], and no established urgency to the matter [406]. Ultimately, the Judge agreed with counsel for the claimant that the overall tone of the publications were “abusive, aggressive and sensational” [414], and that the public interest defence was not made out.

Damages

The Judge accepted the thrust of the claimant’s submissions for damages and awarded an amount of £110,000 including aggravated damages.

Comment

In a post #MeToo era, this case acknowledges that the “modern” hypothetical reasonable reader has a nuanced understanding of the meaning of “rape” to include that the perpetrator had intercourse with someone who was not consenting and the perpetrator did not reasonably believe that person was consenting. In civil cases, alleging serious criminality requires clear evidence. The more serious the allegation is, the stronger the evidence must be to prove the allegation is true on the balance of probabilities.

In this case, the defendant faced an uphill battle worsened by a factual matrix that threw doubt on his aspersions – he himself was not the alleged victim of rape; he had an apparent disagreement with the claimant prior to his statements; the alleged victim had a complex history with the claimant; and the defendant was unable to demonstrate a clear argument for the public interest in his publications.

In the age of keyboard warriors, this case serves as a cautionary tale to those who choose to base their defamatory statements on others’ allegations without doing due diligence. And when truth fails, reliance on the public interest defence requires more than just a tangential approach to establish its operation.

Floyd Alexander-Hunt is an LLM candidate at Queen Mary University London and a research assistant at King’s College London.