Since Mrs Justice Collins Rice handed down judgment in Blake v Fox [2024] EWHC 146 (KB) there has been a lot of online discussion about the case. There appears to be some confusion about what the judgment means, so in this article I’m going to clear up some misconceptions.
If you would like to read a summary of the judgment you can read my previous post for Inforrm here:
Myth 1: “This judgment means it’s true Laurence Fox is a racist”
The judgment didn’t decide this.
There are two parts to any libel judgment. The first part decides whether the publication was defamatory of the claimant. The second part moves onto any defences.
Crucially, the court only moves onto the second phase if it finds that the publication defamed the claimant. If the publication didn’t defame the claimant, the claim fails at the first hurdle and that’s the end of the matter. Defences only come into play if the publication is found to be defamatory.
In this case, Mr Fox argued that the tweets calling him a racist defamed him and that the defendants’ defences of truth and honest opinion failed.
But Mr Fox did not get past the first phase. He was not able to establish that the tweets calling him a racist defamed him. So the judgment did not need to examine the defences that it was true that Mr Fox was a racist, or that it was an honest opinion that Mr Fox was racist.
This means the court made no finding about whether Mr Fox was, in fact, a racist. His claim failed before it could get to that point.
Myth 2: “The judgment says it’s not defamatory to call Laurence Fox a racist, so I can call him a racist as well”
This isn’t what the judgment means.
It’s important to consider why the court held that the tweets calling Mr Fox a racist were not defamatory. In the first phase (which decides whether the publication was defamatory) the court must answer two questions. Firstly, did the publication lower the claimant in the eyes of reasonable readers? That is, did anyone think less of the claimant?
Secondly, s.1(1) of the Defamation Act 2013 means that claimants now have to prove that the publication caused, or was likely to cause, serious harm to their reputation. This must be proven with evidence.
Mr Fox succeeded on the first question. The court held that a reasonable person would think less of him upon reading that he was a racist. The tweets calling him a racist had the potential to harm his reputation. But Mr Fox failed on the second question: the publication did not actually cause any serious harm to his reputation. Mr Fox could not prove that the published tweets caused his agent to drop him or caused him to lose his acting career.
This means that if someone else publishes something to the effect that “Mr Fox a racist”, it has the tendency to lower his reputation in the eyes of others. This has the potential to harm his reputation. And if Mr Fox could bring evidence to show that this particular publication did in fact seriously harm his reputation, then the publication would be defamatory.
It wasn’t defamatory for the counter-defendants on this occasion to tweet that Mr Fox was a racist. But this does not mean that Mr Fox could not be defamed by someone else calling him a racist on another occasion. The judgment is not authority that it’s never defamatory to call Mr Fox a racist.
Myth 3: “It’s not possible to say that Mr Fox wasn’t defamed, because the court didn’t define the word ‘racist’”
At the preliminary issue trial on meaning ([2022] EWHC 3542 (KB)), Mr Justice Nicklin did not define the meaning of the word ‘racist’ because both sides accepted that “racist” was an ordinary English word requiring no definition. Mr Fox appealed, saying it was essential for the court to define the meaning of ‘racist’. The Court of Appeal ([2023] EWCA Civ 1000) disagreed:
“it is odd for Mr Fox to complain…when in substance the judge accepted Mr Fox’s pleaded case on the meaning of the statements complained of, including his primary case (with which the claimants agree) that there is no need for any definition of ‘racist’.” [57]
Aside from the parties agreeing that a definition wasn’t necessary to proceed with the case, the Court of Appeal emphasised that the judge’s task was to determine the natural and ordinary meaning of the statement complained of, and not individual words within that definition: “whether a term needs definition…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.” [59]
Furthermore, in the latest judgment, Mrs Justice Collins Rice discussed the term “racist” and said:
“While there is no doubt an identifiable irreducible core meaning of that term which would be generally if not universally recognised in contemporary Britain…there is also a wide penumbra of meaning which must be acknowledge to be genuinely debatable. Courts do not shy away from difficult assessment of contemporary cultural standards where the law required to. But where, as I have concluded, the law does not so required, because, by operation of statue and application of the serious harm test, an opinion on such a matter must in law be regarded as ‘note defamatory then courts must be properly circumspect about wading unnecessarily into such territory.” [164]
In short, it wasn’t necessary to define the term “racist’ to dispose of the case.
Myth 4: “But surely free speech lets you defend yourself if you’re attacked? Mr Fox was just replying to an attack. It’s not fair this was found to be defamatory”
There is a right to reply to a verbal or written attack, and if exercised properly it’s a complete defence to defamation. But just like self defence against physical attack, it has to be within reasonable and proper bounds: it must be proportionate and not include irrelevant statements. For example, if someone called me a racist I would be entitled to forcefully accuse them of racism in reply. I could call them a liar. I could even respond with vulgar abuse.
The problem with Mr Fox’s reply is that it was “mere retaliation – an escalatory and disproportionate response by way of entirely irrelevant statements.” [107] The reply to attack defence does not give a license to defame someone with impunity. Mr Fox’s reply was too extreme: in response to being called a racist, he responded with a random, harmful allegation of criminal paedophilia. This took his words outside the realm of free speech and into the domain of defamation.
Myth 5: “Mr Fox was clearly being rhetorical and wasn’t being serious. It’s condescending to suggest that ordinary people were incapable of understanding that Mr Fox was engaging in word play”
This was extensively discussed in the Court of Appeal judgment. Firstly, the court emphasised that “the judge was not saying…that ordinary reasonable users of Twitter…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….it does not follow from the fact that tweets are generally read swiftly that their readers are careless, superficial or unsophisticated.” [paras 56-57]
Secondly, the Court of Appeal agreed with Mr Fox that readers would appreciate that Mr Fox was replying to Ms Thorp in a rhetorical way. Mr Fox repeated the very words that Ms Thorp used and it clearly involved mimicry:
“[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. Understood in that way it was not defamatory.” [72]
So why did Mr Fox fail on the ‘rhetoric’ point in relation to his tweets to Mr Blake and Mr Seymour? Simply because bluntly stating “says the paedophile” and “pretty rich coming from a paedophile” isn’t rhetoric at all:
“Those were short and pithy tweets of between three and six words….they do not give the appearance of being carefully considered or crafted. They are straightforward assertions. The one striking word was ‘paedophile’…It by no means follows that it would be obvious to the reader that what he was trying to do was to make [a] somewhat complex rhetorical point.” [68-69]
The lesson is if you want your words to be understood as rhetorical, or mere word play then there had better be actual word play and not just bald accusations.
Myth 6: “Wait…a while ago a court found that Elon Musk didn’t defame someone by calling him a “pedo guy”. So surely that means it can’t be defamatory to call someone a “paedophile”?”
There’s a big difference between USA and English defamation law. Firstly, in English law the burden of proof is on the defendant to show that the statement wasn’t defamatory. In USA law, the burden of proof is on the claimant. Secondly, the Musk case was decided by a jury and they appeared to believe that Mr Musk’s tweet was not defamatory because of Mr Musk’s conduct. They were satisfied that it was a joke that was badly received, Mr Musk immediately deleted it, apologised, and moved on. In short, Mr Musk said something stupid but immediately took it back.
Mr Fox, on the other hand, did not delete his tweets immediately. He refused to apologise to the claimants, and he did not retract the accusation that they were paedophiles. Mr Musk’s apologetic behaviour defused the defamation bomb, whereas Mr Fox did nothing to turn down the heat of his strong accusation.
It’s a good reminder that whether a statement is defamatory or not depends on the overall context, and the behaviour of the parties. It’s also a good reminder that it’s extremely unwise to accuse people of paedophilia on social media, especially if you have a very large following.
Hayley Webster is a trainee barrister at Matrix Chambers.
Very interesting article! A question. Your write “Secondly, s.1(1) of the Defamation Act 2013 means that claimants now have to prove that the publication caused, or was likely to cause, serious harm to their reputation. This must be proven with evidence.
Mr Fox succeeded on the first question. The court held that a reasonable person would think less of him upon reading that he was a racist. The tweets calling him a racist had the potential to harm his reputation. But Mr Fox failed on the second question: the publication did not actually cause any serious harm to his reputation. Mr Fox could not prove that the published tweets caused his agent to drop him or caused him to lose his acting career.”
Presumably, if Mr Fox had adduced evidence that the tweets were likely to cause him to lose acting jobs in the future, as opposed to showing that had already in fact lost acting jobs, would that not have been sufficient for the purposes of “likely to cause” in s.1(1)?
To be more precise, Mr Fox just had to show that the tweets had caused or were likely to cause serious harm to his reputation, so he didn’t have to evidence this in terms of career loss. But if you can link career loss to the publication this is good evidence of serious harm. Yes, if he had shown the tweets were likely to cause him to lose work in the future that would have been sufficient for the ‘likely to cause’ requirement in s.1(1). But the problem is he would still have to demonstrate a causal link and establish that such losses were likely – which is not easy to do. I think given the amount of material out there (including Mr Fox’s own statements about racial issues) it would be extremely difficult to single out those particular tweets and say they were likely to cause future losses.