Preliminary issues judgment – defamatory tweets
On 1 November 2022, Mr Justice Nicklin decided preliminary issues in a libel case, involving a claim and counterclaim over six tweets. The judgment is now available.
The libel claims are brought over three tweets, one about each of the claimants - gay rights activist Simon Blake, drag entertainer Crystal (Colin Seymour), and writer and broadcaster Nicola Thorp. The actor Laurence Fox had called each of them a “paedophile”. In defending the claims, Mr Fox denied that his tweets were defamatory, claiming that they were merely “rhetorical comment”. (He has never suggested that the paedophile allegation was true). Mr Fox brought a counterclaim against each of the claimants, who had described him as a “racist”, following Mr Fox’s response (also on Twitter) to an announcement by Sainsbury’s in October 2020 of its celebration of Black History Month and measures taken to support black and minority ethnic employees.
At the preliminary issues trial, Mr Justice Nicklin considered the well-established principles for determining “meaning” in a libel case where the publications are on social media. On the claims, he ruled in favour of the claimants on meaning. Contrary to Mr Fox’s claims, each of his tweets was defamatory at common law, making a factual allegation that each of the claimants was a paedophile. As for Mr Fox’s counterclaims, while each tweet meant that he was a racist, which was defamatory at common law, each was a statement of opinion (not, as Mr Fox had contended, an allegation of fact). As Mr Justice Nicklin stated, there are some words which almost always signify that they represent a person’s opinion – and “racist” was “quintessentially one of those words”. The allegation that someone is a racist is “very different from the allegation that somebody is a paedophile”.
Mr Justice Nicklin also considered whether the claimants’ tweets had indicated the basis of the opinion expressed. This is an element in the honest opinion defence under section 3 of the Defamation Act 2013. The Judge found that two of the claimants had done so, because they had quote-tweeted Mr Fox’s tweet about the Sainsbury’s initiative. Although readers of the third claimant’s tweet would have understood that it was an expression of opinion, they would not have known (from the tweet itself) what the basis for that opinion was.
The remaining issues in the claims and counterclaim are to be determined at trial.
Earlier in the proceedings, in May 2022, Mr Justice Nicklin dismissed Mr Fox’s application for trial by jury. He rejected Mr Fox’s argument that there would be an appearance of “involuntary bias” if a judge were to decide the case. Section 11 of the Defamation Act 2013 had removed the presumption in favour of jury trial for defamation cases. So far as any broader issues of discretion under section 69(3) of the Senior Courts Act 1981 were concerned, Nicklin J had “no hesitation” in rejecting the application.
Heather Rogers KC and Beth Grossman represent Simon Blake, Colin Seymour and Nicola Thorp, instructed by Mark Lewis at Patron Law Ltd.
The judgment for the trial of preliminary issues can be found here.
The judgments as to the trial by jury application can be found here and here.
