David Paisley v Graham Linehan

In determining meaning in online libel claims, the court must identify the particular statement and publication complained of, read the publication as a whole, and assess the impression on the ordinary reasonable reader. Online comment threads may require separate treatment where their content, ordering and visibility change over time. Value-laden terms such as misogynistic, homophobic or harassing may convey fact rather than opinion; classification depends on context, presentation and whether the reader is given the basis for a subjective evaluation. Vulgar abuse is context-sensitive and may convey no defamatory imputation, or may be understood as unserious. A court should avoid strained, over-analytical meanings and should not select the most serious meaning merely because it is possible.

The claimant, David Paisley, brought claims in libel and other torts concerning seven publications on the defendant Graham Linehan’s Substack. The publications comprised articles, readers’ comments, or both, concerning disputes about transgender rights, women’s rights, alleged harassment and police complaints.

The trial concerned three preliminary issues: the meaning of each statement, whether it was defamatory at common law, and whether it conveyed fact or opinion. The court also considered how the Charleston principle applied to online articles and changing comment threads, including whether individual comments or groups of comments could safely be assessed without identifying the relevant publication and material time.

1. Preliminary issues. The court determined the meanings of the publications and held that each identified publication was defamatory at common law. The meanings are set out in the judgment at [102].
2. Meaning. The single natural and ordinary meaning was assessed by reference to reasonableness, the ordinary reasonable reader, the publication read as a whole, context and mode of publication. The publisher’s intention was irrelevant. The court rejected meanings produced by strained or overly analytical reasoning. The reader was not avid for scandal, but was not required always to select the least derogatory meaning.
3. The publication and statement complained of must be clearly identified. Under [1995] 2 AC 65, the reader is treated as having read the entire publication. An online article may be a separate publication from comments beneath it. Where comments are unstable, differently displayed, added or deleted, the court may be unable safely to determine meaning without knowing what readers would have seen and at what time.
4. Fact and opinion. Whether words convey fact or opinion depends on how they would strike the ordinary reasonable reader in context. Strongly evaluative terms may still convey factual allegations. A statement about a person’s character or the quality of their conduct is not thereby opinion. Opinion is more likely where the reader can recognise a subjective assessment and the basis for it. The court treated the allegations in Publications 2 to 7 largely as factual, while treating parts of Publications 1, 2 and 4 as opinion.
5. Vulgar abuse. Abuse may convey no defamatory meaning, or may be understood as unserious, depending on the words, medium and context. The references to paedophilia in Publication 1 were not mere abuse because they were elaborated and presented as an assessment of material said to show an unhealthy interest in children.
6. The court declined to determine the meanings of the comments beneath Publication 4. The claimant was required first to identify each comment or group of comments, establish that all reasonable readers would have seen the relevant material together, and identify the time at which the assessment was to be made.