The case of Safiullah Ahmadi v Guardian News & Media Limited [2025] EWHC 1191 (KB) is the first modern authority in England and Wales to consider whether it is defamatory at common law to describe a person as homosexual.

Mr Justice Johnson struck out a defamation claim against Guardian News and Media (“GNM”) concerning an article which reported on the murder of a gay man in Afghanistan, and entered summary judgment for GNM.  The Judge held that an alleged meaning of homosexuality is not defamatory.

Background

The Claimant is an Afghan national who resides in Kabul, Afghanistan.  He identifies as heterosexual and views his life and identity as deeply rooted in Afghan society, where homosexuality is punished by death or severe punishment.

In October 2022, GNM published an article on The Guardian’s website in October 2022, headlined: “Gay Afghan student ‘murdered by Taliban’ as anti-LGBTQ+ violence rises”.  The article reported on the Taliban’s abduction, torture and murder of a gay medical student called Hamed Sabouri in Kabul in August 2022.  The article originally included a photograph which the Claimant says depicted him.  The image was removed around 12 hours after the article was published.

The Claimant issued a claim for libel against GNM, seeking more than £100,000 in damages.  The Claimant’s case was that, notwithstanding the use of a different name in the article and that he was still alive, readers would identify him as the subject of the article because the photograph in the article depicted him.  The Claimant contended that the article bore the defamatory meanings that there were reasonable grounds to suspect that the Claimant was homosexual and was in a homosexual relationship.  He claimed that the article has caused and/or is likely to cause serious harm to his reputation, stating he went into hiding and has been unable to study or work due to his fear of the Taliban as a result of the article.

GNM applied to strike out the claim and for summary judgment, submitting that the meanings alleged by the Claimant are not defamatory.

Decision

Defamatory meaning

In discussing the legal test for what makes a statement defamatory at common law, the Judge emphasised that it is where the statement tends to have a substantially adverse effect on the way that right-thinking members of society generally would treat the claimant.  The test is whether the meaning attributes to a claimant behaviour or views that are contrary to common, shared values of society, or illegal or immoral by the standards of society as a whole.  The Judge stated that it is not enough for a statement to have an adverse effect on the attitudes of only a certain section of society.  He therefore dismissed the Claimant’s submission that it was appropriate to focus on the views of particular sections of society (in this case, the ‘Afghan/Iranian/Muslim community’) and the Afghanistan Penal Code 2018 (which criminalises homosexuality).  The Judge indicated that regard may be had to the domestic legal framework in the England and Wales jurisdiction.

The Judge acknowledged that there was a time when allegations of homosexuality were regarded as defamatory (for example, in Kerr v Kennedy [1942] 1 KB 409, it was determined that describing a woman as a lesbian was defamatory).  However, he noted that societal views had changed.  He referenced cases in Scotland, Australia, and the US where allegations of sexual orientation had been held not to be defamatory.  He also set out legislative and judicial developments in England and Wales (such as the decriminalisation of homosexuality and legally recognising same-sex civil partnerships and marriages) which demonstrate a “seismic societal shift”.  Recent High Court decisions in fact held it was defamatory to allege that a person expressed homophobic views or engaged in homophobic behaviour (Alam v Guardian News [2023] EWHC 2847 (KB); Paisley v Linehan [2024] EWHC 1976 (KB)).  The Judge noted that it would be incoherent if allegations of homophobia and homosexuality were both regarded as defamatory.

The Judge acknowledged that in the same way that there are racist people, “some people are homophobic… but their views are not reflective of right thinking members of society generally”.  No English dictionary defines words meaning same-sex attraction in a way that implies moral disapproval.  In light of societal changes since the 1960s, the Judge held that “there is no longer any scope for argument that right thinking members of society generally would think less of someone because of their sexual orientation or because they are in a same-sex relationship”.

On that basis, the Judge found that there are no reasonable grounds for bringing the claim, and struck out the claim and entered summary judgment in GNM’s favour.

Reference

The Judge determined that the claim was not viable on the additional basis that a reasonable reader would not, after the reading the article in full, conclude that the publication referred to the Claimant.  Although the photograph was capable of referring to the Claimant, it was not a sufficient basis for reference given the article explicitly referred to Mr Sabouri by name and described him as a gay Afghan medical student who was murdered (and the Claimant is not gay, not a medical student, and is alive).  If a reasonable reader acquainted with the Claimant did consider the photograph to depict the Claimant, they would likely conclude, having read the article as a whole, that either the image was in fact of Mr Sabouri (and that he resembled the Claimant), or was of the Claimant but had been included in error.

Serious harm to reputation

The Judge did not consider that the Claimant had given any particulars of actual harm sustained in this jurisdiction as a result of the publication.  The details the Claimant did give (of going into hiding and fearing the Taliban) amounted to subjective fears on the Claimant’s part which is not sufficient to found a libel claim.

The Judge accordingly held that there was no realistic prospect that the Claimant would succeed in showing that the publication had caused, or was likely to cause, serious harm to his reputation.

Comment

The decision makes clear that describing someone as gay is not, by itself, defamatory at common law (at least not in this jurisdiction).  There may, however, be instances where an additional suggestion of impropriety or dishonesty (for example, where a claimant lies about their sexuality) may make a description of homosexuality capable of founding a defamation claim.

More broadly, the decision highlights the complexities in applying the legal test for what is defamatory in a diverse society with a multitude of cultural and religious views.  Determining the ‘general societal view’ is particularly challenging in respect of topics such as sexual orientation, religious beliefs and practices, and abortion.  In addition, the decision highlights the evolving nature of defamation law: as societal views shift, so too does the legal threshold for what is considered defamatory.

This post  originally appeared on the Brett Wilson Media and Communications Law Blog and is reproduced with permission and thanks.