Simon Blake & Ors. v Lawrence Fox

The natural and ordinary meaning of a social-media publication is assessed objectively from the standpoint of the hypothetical ordinary reasonable reader. The court considers the publication, its medium, common knowledge, intrinsic hyperlinks and directly available context, but excludes reader-specific extrinsic evidence and avoids over-analysis. Whether words convey fact or opinion is context-sensitive. Criminal allegations commonly convey fact, while value-laden terms such as racist commonly convey opinion, although neither is subject to a strict rule. Under section 3(3) of the Defamation Act 2013, the basis of an opinion must be indicated by the publication itself, in general or specific terms. An intrinsic reference may suffice, but a reader’s speculation cannot supply the basis.

The claimants brought libel claims concerning tweets published by the defendant. The defendant counterclaimed in respect of tweets in which each claimant described him as racist. The court directed preliminary issues concerning the natural and ordinary meanings, defamatory character, fact or opinion, and, for the counterclaim, whether any opinion indicated its basis under section 3(3) of the Defamation Act 2013.

The court found that the defendant’s tweets conveyed allegations that the claimants were paedophiles. It found that the claimants’ tweets conveyed opinions that the defendant was racist. The first and second claimants indicated the basis of their opinions by including the defendant’s Sainsbury’s tweet; the third claimant did not.

1. Preliminary issues. The defendant’s tweets bore the meaning that each claimant was a paedophile who had, or was likely to have, engaged in criminal sexual acts involving children. That was an allegation of fact and was defamatory at common law. The proposed rhetorical or tit-for-tat meaning was an interpretation reached only after analysis. The defendant’s intention did not determine the objective meaning.
2. Meaning and context. Meaning was assessed by reference to the hypothetical ordinary reasonable reader. The court considered the publication’s medium, common knowledge, material intrinsic to the publication, including hyperlinks where appropriate, and directly available context. It excluded reader-specific extrinsic evidence. Social-media communications should be read impressionistically and without elaborate analysis, applying the approach in Riley v Murray [2020] EWHC 977 (QB) and Stocker v Stocker [2020] AC 393.
3. Fact and opinion. Each claimant’s tweet conveyed the opinion that the defendant was racist. The term racist ordinarily has an evaluative quality and invites the question why the speaker held that view. The words unequivocally, publicly and undeniably were rhetorical emphasis and did not turn the opinion into fact. Similarly, the word twat did not remove the defamatory sting of the allegation of racism.
4. Section 3(3). The inquiry under section 3(3) of the Defamation Act 2013 was objective and concerned only the intrinsic qualities of the publication. The question was whether the basis of the opinion was indicated, not whether the factual premise was correct. The first and second claimants satisfied the condition because their tweets included the defendant’s Sainsbury’s tweet. The third claimant’s tweet gave no general or specific indication of its basis, and the suggested public importance of the Sainsbury’s dispute could not supply one. She therefore could not rely on honest opinion if the counterclaim proceeded.
5. Scope of decision. The court determined only the preliminary issues. It did not determine serious harm under section 1 of the Defamation Act 2013, or any other defence, leaving those matters for later determination.

This was a first-instance determination of preliminary issues. Earlier in the same proceedings, the court refused trial by jury in the Mode of Trial Judgment ([2022] 4 WLR 77) and declined directions for disclosure and expert evidence ( [2022] EWHC 2726 (QB)).