Simon Blake & Ors v Laurence Fox

The natural and ordinary meaning of a social-media post depends on the objective impression made on the ordinary reasonable reader in its particular medium and immediate context. An appellate court should exercise disciplined restraint and intervene only for legal error or a conclusion outside the permissible range.

The distinction between fact and opinion is highly fact-sensitive. An allegation that a person is “racist” may be evaluative opinion in context, without a judicially supplied definition. Deliberately reproducing and inverting an opponent’s language may make an apparently serious allegation recognisable rhetorical mimicry, rather than a literal defamatory imputation.

Three claimants tweeted that Laurence Fox was a racist after his criticism of Sainsbury’s Black History Month messaging. He responded to each by using the word “paedophile”. The claimants sued in libel and Mr Fox counterclaimed.

At a preliminary-issues trial, Nicklin J held that the claimants’ tweets meant that Mr Fox was a racist and were opinions. He held that all three of Mr Fox’s responses meant that the claimant concerned was a paedophile and were defamatory allegations of fact: [2022] EWHC 3542 (KB).

Mr Fox appealed the rulings on meaning, fact or opinion, defamatory character, and the absence of a definition of “racist”. The central issue was how the ordinary reasonable reader would understand each tweet in its immediate Twitter context.

1. Appeal allowed in part. The court upheld the preliminary rulings concerning all three claimants’ tweets and Mr Fox’s responses to Mr Blake and Mr Seymour. It allowed the appeal concerning Mr Fox’s response to Ms Thorp. That response was not defamatory, and her claim should be dismissed.

2. Meaning and the fact/opinion classification are objective and fact-sensitive inquiries. The first-instance judge decides the impression made on the ordinary reasonable reader, taking account of wording, medium and immediate context. Under [2019] UKSC 17, an appellate court must exercise disciplined restraint. It cannot intervene merely because it would prefer another reasonably available conclusion.

3. The judge was entitled to find that Mr Blake’s and Mr Seymour’s quote-tweets were opinions. Their quotation of Mr Fox’s tweet supplied an indicated basis for their evaluative comments. The word “racist” was, in context, an evaluative judgment about his behaviour. The judge was also entitled to treat Ms Thorp’s tweet as forceful opinion, despite its emphatic wording; but it did not indicate the basis of that opinion for the purposes of section 3(3) of the Defamation Act 2013.

4. The court also upheld the refusal to define “racist”. The judge’s task was to identify the ordinary meaning actually conveyed. A definition may be needed where a word is used in a limited or specialised sense, but neither party established that position. The parties’ alternative pleadings did not require the court to narrow the ordinary meaning by supplying a definition.

5. Mr Fox’s short replies to Mr Blake and Mr Seymour were straightforward assertions. Their context did not make the serious allegation of paedophilia recognisably rhetorical. The judge was entitled to find literal allegations of fact which were defamatory.

6. Ms Thorp’s exchange was materially different. Mr Fox reproduced her wording and deliberately replaced “racist” with “paedophile”. The ordinary reader would recognise deliberate mimicry and understand a rhetorical objection to the allegation of racism, not a literal accusation of paedophilia. The tweet meant that Ms Thorp had made an outrageous and untrue allegation of racism against Mr Fox.

• Court of Appeal (Civil Division): Appeal allowed in part. The court varied the preliminary ruling by holding that Mr Fox’s response to Ms Thorp was not defamatory; her claim should be dismissed.

• High Court, King’s Bench Division, Media and Communications List: Nicklin J determined preliminary issues and held that the claimants’ tweets were opinions, while all three of Mr Fox’s paedophile tweets were defamatory allegations of fact: [2022] EWHC 3542 (KB) .