On 29 January 2024 Mrs Justice Collins Rice handed down judgment in Blake & Fox [2024] EWHC 146 (KB). The Court found in favour of the Claimants, Simon Blake and Colin Seymour, and dismissed Mr Fox’s counterclaim.
This case emphasises the lesson from Amersi v Leslie [2023] EWHC 1368 (KB) that when approaching the issue of serious harm the tort rules of causation are still in play and should not be overlooked.
It is a useful demonstration of the Lachaux inferential approach to the s.1(1) Defamation Act 2013 serious harm test, and starkly illustrates that success or failure in meeting the serious harm threshold depends on the facts of each case. Any claimant hoping to succeed in a libel claim must demonstrate with evidence that the publication has caused, or is likely to cause, serious harm to their reputation.
Background
The history of this case has been covered extensively on Inform: see the here and here.
On 1 October 2020, Laurence Fox (actor and political figure) responded to a tweet by Sainsburys which celebrated Black History Month. He accused the supermarket of promoting racial segregation and encouraged shoppers to follow his boycott of the store.
On 4 October 2020, Nicola Thorp (actor and TV presenter), Simon Blake (CEO of Mental Health First Aid), and Colin Seymour (a professional drag artist known by the stage name “Crystal”) separately tweeted that Mr Fox was “a racist” (“the racist tweets”). Mr Fox replied to each of them in a quote tweet, calling them “paedophiles” (“the paedophile tweets”). After Mr Fox refused to apologise directly, they brought a defamation claim against him. Mr Fox launched a counterclaim.
In Blake v Fox [2022] EWHC 3542 (KB), Mr Justice Nicklin found that “the meaning of [Mr Fox’s] Tweet is that each of the Claimants was a paedophile, someone who had a sexual interest in children and who had or was likely to have engaged in sexual acts with or involving children, such acts amounting to serious criminal offences. That was…an allegation of fact.” [51]
Mr Justice Nicklin rejected the submission that calling someone a paedophile is mere abuse and that the ordinary reasonable reader would have understood the tweet to be rhetorical word play, not to be taken seriously [52].
In regard to the Claimants’ tweets, Mr Justice Nicklin found that “the single natural and ordinary meaning of each of these Tweets is that [Mr Fox] was a racist. That was an expression of opinion, and obviously so.” [55]
In Blake v Fox [2023] EWCA Civ 1000, the Court of Appeal dismissed an appeal against Justice Nicklin’s meaning judgment for five out of six tweets. The Court held that Mr Fox’s tweet in response to Ms Thorp would have been regarded as rhetorical by the ordinary reasonable reader. Mr Fox was not literally accusing Ms Thorp of being a paedophile but was expressing his objection to being called a racist. The tweet was therefore not defamatory, and so Ms Thorp abandoned her claim.
The Court also held that Mr Justice Nicklin did not fall into error by refusing to define the word “racist”. The meaning of a statement can be decided without defining individual words in that statement.
The Issues
Each Claimant submitted that the “paedophile tweets” had seriously harmed their reputations, and that Mr Fox’s defence of ‘reply to attack’ failed. Mr Fox, in turn, argued that the “racist tweets” had caused him serious reputational harm. He submitted that the Claimants’ s.3 defence of Honest Opinion and Ms Thorp’s s.3 defence of Truth must fail.
In her judgment Mrs Justice Collins Rice found that Mr Fox’s publication had caused, or was likely to cause, serious harm to the reputation of each of the Claimants and that his ‘reply to attack’ defence was “hopeless”. [104] Mr Fox had failed to establish that the “racist tweets” had caused, or was likely to cause, serious harm to his reputation and so his claim failed. There was no need for the Court to consider whether the defences of Ms Thorp and the Claimants succeeded, because s.1(1) provided that the “racist tweets” were not defamatory.
Serious Harm
S.1(1) of the Defamation Act 2013 made serious harm an essential element of the tort of defamation. Under s.1(1) if a publication does not cause, or is not likely to cause, serious harm to reputation it is not defamatory. Serious harm must be established by evidence.
In cases of mass publication, the courts recognise that it is impracticable to require evidence of the effect of publication on readers. Lachaux v Independent Print Ltd [2019] UKSC 27 established that the evidential burden can be met with an inferential case that combines the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probability that serious harm was caused. This was the approach adopted by Mrs Justice Collins Rice (who emphasised that the inferential case is not an alternative to an evidential process, but has to be an evidential process [50])
The Claimants were able to establish serious harm based on the following factors:
Nature of allegation and extent of publication
1) Alleging that someone is a paedophile is “an exceptionally grave and cruel allegation” and inherently likely to cause serious harm. [68]
2) This was a case of mass publication, propagated by a famous publisher with a very large Twitter following. The tweets were extensively discussed in the mainstream media. [70]
3) Even though the tweets were deleted, they continue to circulate to this day in the form of multiple screenshots and onward dissemination. Deletion did not lessen their reach or impact. [71-73]
Situation of the Claimants
4) Both of the Claimants had a public profile as gay men and gay rights activists. As Mrs Justice Collins Rice evocatively put it “the persistent homophobic trope of equivalence…between being a gay man and being a likely paedophile was the petrol-sodden reputational rag onto which Mr Fox’s incendiary tweets landed.” [75]
5) Both of the Claimants had worked with children in roles where safeguarding was of paramount importance. An allegation of paedophilia was thus especially damaging. [76]
6) By coincidence, each Claimant shared a name with a convicted sex offender which would have been easily found by searching their names online. [77]
7) The reputation of each Claimant was spotless. They had never been accused of paedophilia before Mr Fox’s tweets. [78]
Next, Mrs Justice Collins Rice considered whether on balance of probabilities “the paedophile tweets” had caused serious harm to the reputation of each Claimant: had the publication actually caused any readers to think less of them? She concluded that it had. The Claimants were repeatedly accused of being paedophiles online, and such abuse is “capable of poisoning the underground springs of reputation.” [86] The fact that Mr Blake’s employer, Stonewall, felt it necessary to publish a statement of support showed that it recognised the massive reputational impact such an allegation can have.[88]
Mr Fox’s behaviour was also relevant. He did not apologise or formally retract the allegation. [90] His argument that both allegations of racism and paedophilia were ‘equally baseless” was damaging in that some readers would conclude the allegation of racism was well-founded and so the allegation of paedophilia must have a foundation as well. [92]
Mr Fox also had a reputation for saying what he genuinely believed, from the heart, with the intention of being treated seriously. [95] His online followers were likely to think the allegation of paedophilia was something to be taken at face value.
In concluding that Mr Fox’s tweets caused, or were likely to cause, serious harm to the Claimants’ reputations Justice Collins Rice noted that the homophobic abuse had continued during the trial itself, and emphatically stated that “once an influential example is given, and the beast of paedophiliac rumour is released, its appetite can prove voracious and its instinct for vulnerability unnerving. That is how serious reputational harm works. That is why the prospect of reputational vindication in law necessarily exists.” [101]
Reply to Attack
Mr Fox argued that he had the benefit of the qualified privilege defence of ‘reply to attack’. The Claimants had attacked him first by calling him a racist and so he was entitled to make a false defamatory statement in reply. Mrs Justice Collins Rice gave this short shrift: the defence was “hopeless”. [104]
In order to attract qualified privilege, the reply to attack must be proportionate and relevant to the original subject matter. Mr Fox’s tweets were neither of these things. Calling the Claimants “paedophiles” was disconnected from the original accusation of racism and was wholly disproportionate: “the very epitome of mere retaliation.” [107]
Serious harm and the counterclaim
Mrs Justice Collins Rice applied the same approach to Mr Fox’s claim, and it is striking how the factual circumstances make all the difference in determining whether the serious harm threshold is met or not.
The essence of Mr Fox’s counterclaim is that the “racist tweets” destroyed his acting career and caused his agent to drop him. Ms Thorp’s tweets were particularly damaging because it was the first time that someone in the entertainment industry had called him a racist.
The Lachaux factors played out very differently for Mr Fox’s counterclaim:
Extent of publication
- This was a case of mass publication, but Mr Fox’s “paedophile tweets” catapulted the publication into the mainstream media and attracted widespread attention. His own republication of the “racist tweets” and his reply caused the mass publication, so he cannot complain of serious harm in this context. [120]
Situation of Mr Fox
- The heart of Mr Fox’s claim was that his agent dropped him because of the racist tweets, but Mr Fox’s agent did not provide witness evidence. It was thus entirely unclear why she dropped him. [122]
- The evidence shows there were a myriad of alternative explanations why Mr Fox’s agent might have decided to drop him, none of which had anything to do with the Claimants or Ms Thorp. There was evidence that Mr Fox’s agent did not like him stating that “all lives matter” on Twitter. Mr Fox had already generated a lot of negative publicity with his appearance on Question Time months before the racist tweets were published. Mr Fox had also taken up a full-time job with the Reclaim party (and was “getting a huge wad of cash for this game” as Mr Fox himself said.) In short, there is no direct causal link between the racist tweets and Mr Fox’s agent deciding to drop him which was precisely what Mr Fox had to prove in order to establish serious harm. [137]
- There was no evidence that Ms Thorp had the kind of influence and sway over the entertainment industry such that her tweets could cause others in show business to think less of Mr Fox. By the time Ms Thorp had tweeted, the acting world had made up his mind about him. [140]
Mrs Justice Collins Rice concluded that there was simply no causal link between the “racist tweets” and serious harm to Mr Fox’s reputation. His acting career had been negatively impacted long before the “racist tweets” were published. Mr Fox had continually posted controversial views about racism online which had divided opinion. The impugned tweets were a drop in the ocean and did not make any appreciable difference to his reputation. As Mrs Justice Collins Rice put it “there is no evidence to say it was the tweets rather than [Mr Fox’s] presentation as someone who makes controversial views about racism that account for his current reputation in relation to racism.” [153] The serious harm threshold was not met, and so Mr Fox’s claim failed.
Honest Opinion and Truth
Because Mr Fox failed to establish serious harm, the “racist tweets” were not defamatory. The Court did not need to consider the defences of Honest Opinion and Truth. It was not necessary to wade into the territory of whether it was true that Mr Fox was a racist, or whether one could hold an honest opinion that he was racist. This may be a disappointing outcome for the parties who wanted these questions decided, but it does save the Court from the unenviable task of having to decide such difficult matters.
Pre-Existing Bad Reputation
Mrs Justice Collins Rice relied heavily on the fact that Mr Fox already had a controversial reputation in relation to racism, and so it was not possible to disambiguate the harm (if any) caused by the “racist tweets” and the harm caused by statements that Mr Fox (and others) had made.
In Monroe V Hopkins [2017] EWHC 433 (QB), Mr Justice Warby (as he then was) cautioned that just because readers already have a low opinion about a claimant this does not mean that a publication cannot harm the claimant even further. [71] So even if readers already considered that a claimant was “racist” a further publication accusing the claimant of racism could potentially lower their views of him even further.
However, Mrs Justice Collins Rice was unable to find that the “racist tweets” significantly contributed to a further lowering of Mr Fox’s reputation. This was because the impact of the Question Time appearance, as well as the impact of controversial statements by Mr Fox, were so great that publishees would have firmly made up their minds one way or the other about Mr Fox. The “racist tweets” were anodyne in comparison to what had been published before and were not capable of having the kind of impact that would sway reader’s opinions. The “racist tweets” were simply expressions of a kind that other people had expressed to Mr Fox before and did nothing more than confirm views that readers already had.
Causation was also important. Even if it was found that readers’ opinions of Mr Fox lowered over time since the publication of the “racist tweets”, it was not possible to disentangle the causal matrix to find out if the cause of this dropping opinion was the “racist tweets” or the many things that Mr Fox himself said and did. Mrs Justice Collins Rice found that it was extremely unlikely that the “racist tweets” were the primary cause of Mr Fox’s reputation, and that the more likely explanation was his own courtship of controversy.
Hayley Webster is a trainee barrister at Matrix Chambers.
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