Greenstein v Campaign Against Antisemitism

Summary judgment may determine an honest-opinion defence where admitted or incontrovertible facts show that an honest person could have held the opinion at publication. The court does not assess whether the opinion was correct or whether additional exculpatory context might have affected it. Malice under section 3(5) of the Defamation Act 2013 concerns whether the opinion was honestly held; ill-will, spite, inconsistency, omission of favourable material and allegations about conduct towards others do not establish it without facts probative of dishonesty. A plea of malice must therefore identify facts more consistent with its presence than its absence. The Jameel jurisdiction is exceptional and requires evidence enabling the court to compare the value of the claim with the cost of pursuing it.

The claimant brought libel, data-protection and misuse-of-private-information claims concerning five articles published by the defendant. On preliminary issues, Nicklin J held that the articles conveyed opinions that the claimant was antisemitic and had lied about the International Definition of Anti-Semitism and the defendant, together with a factual allegation that he had committed criminal offences. The claimant’s application for permission to appeal that decision was refused.

The defendant applied for summary judgment on the honest-opinion defence, strike-out of the pleaded malice allegations, and strike-out of the remaining claims under the Jameel jurisdiction. The central questions were whether an honest person could have held the relevant opinions on facts existing at publication, whether malice was properly pleaded, and whether continuation of the data-protection and privacy claims would be abusive.

1. Honest opinion. Summary judgment was granted on the three honest-opinion meanings. The relevant question under section 3(4)(a) of the Defamation Act 2013 was whether an honest person could have held the opinion on facts existing when the First Article was published. The court was not required to determine the correctness of the International Definition of Anti-Semitism, or to consider later facts and additional context which were not relevant to that statutory question.
2. The claimant admitted writing the pre-publication tweets relied upon. Their content, including comparisons involving Nazis and the use of “Zios”, was sufficient for an honest person to hold the opinion that he was antisemitic. The claimant’s admitted knowledge of the definition also meant that an honest person could hold the opinion that he had lied when saying in The Guardian that the definition prevented criticism of Israel. The admitted facts about the defendant’s website and activities similarly supported the opinion that he had lied to the Charity Commission about the defendant’s concern with fascist groups and Holocaust deniers.
3. Malice. The pleas relating to the opinions were struck out under CPR 3.4(2)(a). Under section 3(5), malice concerns honesty of belief. Retaliation, spite, failure to mention favourable matters, alleged misuse of the definition, alleged inconsistency, and allegations concerning statements about other people did not show that the relevant opinion was not honestly held.
4. The factual allegation concerning the claimant’s convictions was admitted to be true. Under section 8(5) of the Rehabilitation of Offenders Act 1974, malice required an irrelevant, spiteful or improper dominant motive. The pleaded facts did not establish such a case. The article’s explanation that the convictions were relevant to an allegation of dishonesty was plausible, and the age and spent character of the convictions did not by themselves establish malice.
5. Remaining claims. Paragraph 7.2 of the data-protection claim was struck out by concession. The applications to strike out the remaining claim under the Data Protection Act 1998 and the misuse-of-private-information claim were refused. The Jameel jurisdiction is exceptional, and the defendant had provided no evidence of the cost of continuing those claims sufficient to show that proportionate adjudication was impossible.

The judgment itself describes the preliminary-issues decision and the refusal of permission to appeal:

• High Court (Queen’s Bench Division): Nicklin J determined meaning and fact/opinion issues on 15 February 2019: [2019] EWHC 281 (QB).
• Court of Appeal: Asplin LJ refused permission to appeal on paper on 25 March 2019.
• High Court (Queen’s Bench Division): The present court granted summary judgment on the honest-opinion defences, struck out the pleaded malice allegations and one data-protection paragraph, but refused to strike out the remaining data-protection and privacy claims under the Jameel jurisdiction.