High Court finds defamatory paedophile meanings in Paisley v Linehan judgment

The High Court has handed down a preliminary trial judgment in Paisley v Linehan dealing with three statements published as comments written by subscribers on the Defendant’s Substack blog.  It held that all three (known as publications 4(1)-(3)) were defamatory of the Claimant at common law: the first two conveyed that the Claimant was a paedophile and the third that the Claimant was party to a co-ordinated effort by child molesters who had adopted LGBT causes. 

The Court rejected the Defendant’s argument that his replies posted to publications 4(1) and 4(2) removed or diluted any defamatory sting, concluding that they did nothing to alter the paedophile meaning. As the first judgment of its kind, the Court gave guidance on how common law defamation principles should be applied to publications on X/Twitter and similar platforms where the contextual material changes over time [23]. The Court also rejected the Defendant’s case that the allegation that the Claimant was a “nonce” was not defamatory at common law as it was mere ‘abuse’.  

Mark Henderson acts for the Claimant, instructed by Paul Greenberg at Cohen Davis Solicitors, and led by Lorna Skinner KC. The Claimant, David Paisley, is a gay man and former actor and LGBT and women’s rights campaigner. The Defendant, Graham Linehan, is a ‘gender critical’ campaigner and well-known television writer (the creator of Father Ted). 

The rulings

In an earlier judgment, Deputy High Court Judge Aidan Eardley KC had held that six articles and a comment thread on the Defendant’s Substack were defamatory of the Claimant. In the current judgment, he ruled that publications 4(1) and 4(2) conveyed the defamatory opinions that “the Claimant is a paedophile” and is “rightly to be described as a paedophile” (until 4(1) was deleted by the writer). Publication 4(2) continued to convey a defamatory factual imputation about the Claimant seeking to normalise adult male nudity in the presence of children.

Publication 4(3) was held to convey the defamatory factual imputation that the Claimant was “party to a co-ordinated attempt by child-molesters to manipulate, threaten or coerce those who are trying to expose and defeat their strategy of adopting LGBT causes in order to enhance their ability to groom and abuse children”.

Guidance on the correct approach for future cases

While many judgments have grappled with the test for what is admissible as context for publications on Twitter/X and similar platforms, this judgment was, the Judge explained, the first to grapple with how defamation law should deal with changes in the contextual material during the period of publication that a claimant complains of.

The Judge set out the opposing analytical approaches of each party. The Claimant argued that the meaning of a single statement could change during its publication in response to changes in to the context [12]. The Defendant argued that the statement must become a different statement each time the contextual material changes [19].

The Judge explained why he preferred the Claimant’s analytical approach [22]. As it was the first judgment to tackle the issue head on, he went on to explain why he agreed with the undisputed granular approach [23], concluding that “meaning falls to be determined afresh when the admissible contextual material has changed in a way that might yield a different determination on meaning in respect of publications of the statement complained of that occur after that change” [26].

He rejected an alternative rule that contextual material is admissible only if available to all publishees throughout the period that the statement complained of is published. This rule “would be unjust to defendants, possibly to the point that it could amount to an unjustifiable interference with their ECHR article 10 rights” and would be contrary to the established common law principle that “a new publication occurs every time that the statement is read by a third party” [25]. He concluded that the approach would not erode the solid common law distinction between natural and ordinary meaning on the one hand and innuendo meaning on the other, and that it would work in practice because the Court should not be asked to reassess meaning based on trivial contextual changes as opposed to those capable of making a real difference such as placing the statement in a different Chase category or neutralising the defamatory sting altogether [27].

Decisions on publications 4(1) and (2)

The Claimant said that the allegation that he was a “nonce” carried the ordinary meaning that he was a paedophile. The Defendant admitted that this was its ordinary meaning, but contended that it was not defamatory in context because “the whole tone of the comment is abusive, simply exhibiting extreme dislike for the Claimant … and that the use of “nonce” is just more abuse” [31].

The Judge rejected the Defendant’s contention, explaining that “much of the Article [in publication 4] was devoted to explaining how paedophiles operate and, in that context, [the reader] would understand [the poster] to be making a seriously intended point that this label should also be applied to the Claimant”. He ruled that: “it is not possible to dismiss the “nonce” comment as mere meaningless abuse” [32]. 

He concluded that the paedophile meaning would be understood as defamatory opinion about what had been said about the Claimant in the Defendant’s article [34; 39].

Having earlier identified the correct legal approach to changes in admissible context, the Judge went on to conclude that “I do not accept that [the Defendant’s replies] (alone or in combination) serve to neutralise or dilute the sting of the “nonce” comment”  in publication 4(1) [33], nor did they do “anything to alter the sting” of publication 4(2) [39]. 

The Judge explained that: “The ripostes do not state that the “nonce” comment is false. Neither do they imply this (the reasonable reader – who is not a lawyer - would not pause and try to work out whether that was the implication of “actionable”)”. This description would instead convey that “the Defendant does not want allegations of paedophilia being thrown around on his Substack, with all the possible legal consequences that that could entail” [33].

The final contextual change in relation to publication 4(2) was the deletion of publication 4(1) by the author, from which point publication 4(2) ceased to convey the meaning that the Claimant is “rightly to be described as a paedophile”. However, it continued to convey a factual imputation that “the Claimant seeks to normalise adult male nudity in the presence of children”. The Judge explained that “the words “basically wants the right to whip his cock out in front of kids” would be seen as summarising, in colourful terms, what the Article says about the Claimant, and bears the same meaning as the Article” [38]. The imputation, both in the article and publication 4(2) was one of fact [40]. Rejecting the Defendant’s case that the imputation was not defamatory, the Judge concluded that: “Outside certain specific circumstances, right thinking members of society generally would regard adults parading around naked in front of children as something that is at least highly inappropriate and potentially even harmful. To accuse someone of seeking to normalise such behaviour would, in my judgement, tend to have a substantially adverse effect on how people would treat that person” [41].

Decisions on publication 4(3)

Neither party contended that publication 4(3) was affected by any changing contextual material. The dispute focussed on its ordinary meaning and whether it was fact or opinion. 

The Judge set out his reasons for determining that it conveyed a meaning (quoted above) which departed from that advanced by both parties: 

I cannot accept the Defendant’s submission that the comment merely portrays the Claimant as an innocent participant in the trans-rights debate whose position has been latched on to by child-molesters for their own purposes: there is a clear implication that he is aware of the child-molesters’ agenda and that his bullying behaviour (which readers will recall from the Article) formed part of the “game” they were playing. However, neither can I accept the Claimant’s submission that the comment accuses the Claimant himself of being a child-molester or groomer. That would only be the reaction of an unduly suspicious reader. Read in the context of the Article (which notably does not make these allegations against him) he is only being accused of advancing the child-molesters’ cause. Nevertheless, the reasonable reader would not put this down to naivety on the Claimant’s part. He is accused of “giving the game away” and one can only give the game away if one knows what the “game” is. It is an allegation of knowing assistance [50].

The Judge finally concluded that this was a defamatory imputation of fact:

It is in categorical terms and the writer presents himself as someone with knowledge or experience of what is going on in the child-molesters’ camp (they have, as a matter of fact, pursued a particular strategy and have now switched to attacking those who were calling them out). The allegation that the Claimant is part of their “game” would be taken in the same way: a claim purporting to be based on prior knowledge of the Claimant’s relations with the paedophile community. It would not strike the reader as merely a subjective evaluation of the conduct ascribed to the Claimant in the Article [51].

Conclusion

This judgment is the latest instance of the High Court giving guidance adapting common law defamation principles dating from the pre-digital era to the contemporary publishing environment in a way that affords a practical and effective framework for addressing claims about defamatory online speech.