Kirkegaard v Smith

In determining meaning and whether words are fact or opinion in a defamation claim, the court must assess the publication as a whole from the perspective of the hypothetical reasonable reader. Context includes the medium, surrounding discussion and, where appropriate, hyperlinked material. Social-media publications require an impressionistic assessment suited to the way such material is written and read.

An allegation may be opinion where it is recognisable as an inference, deduction or criticism based on identified material. There is no fixed rule that an allegation of criminal or dishonest conduct is necessarily fact. The four publications were defamatory expressions of opinion at common law.

The claimant, Emil Kirkegaard, brought a defamation claim concerning four publications by the defendant, Oliver Smith. Three were comments in an online discussion thread and one was a tweet. The defendant applied under CPR r 3.1(2)(i) for preliminary determination of the meanings of the publications and whether they were defamatory.

The central issues were whether the words bore the claimant’s pleaded meanings, whether the publications alleged fact or expressed opinion, and whether hyperlinked material and surrounding online discussion formed part of the relevant context.

1. The court determined meaning by asking what the hypothetical reasonable reader would understand from the publications. The publications had to be read as a whole, in context and without overly technical analysis. The court applied the principles summarised in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB).
2. Context included the nature of the online forum, the preceding discussion and the hyperlinked material. Readers of this particular discussion thread were likely to scrutinise the linked material in order to understand and assess the debate. The court therefore rejected the claimant’s submission that the hyperlinks should be disregarded.
3. For the tweet, the court adopted an impressionistic approach appropriate to Twitter, while considering the whole tweet and the matters placed before the reader through Twitter. The tweet conveyed inferences from the claimant’s writings and criticism of his character, rather than literal assertions that he was a child sexual abuser.
4. For the three online posts, the surrounding debate and linked sources showed that the defendant was advancing conclusions about the claimant’s published writings and views. The allegations were therefore recognisable as expressions of opinion, notwithstanding their severity. The court applied the contextual approach in Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) and the social-media guidance in Stocker v Stocker [2019] 2 WLR 1033.
5. The meanings found for each publication included allegations that the claimant supported or apologised for paedophilia, supported or wished to legalise animated child pornography, and held views concerning sexual activity with children. Each meaning was an expression of opinion and defamatory at common law.
6. The court expressly stated that it was not deciding serious harm under s 1 of the Defamation Act 2013.