Andy Ngo v Guardian News & Media Limited

In determining meaning at a preliminary issue trial, the court must identify the single meaning conveyed to the hypothetical ordinary, reasonable reader, giving appropriate weight to first impressions and avoiding over-elaborate analysis.

A description such as “alt-right agitator” may be an assertion of fact where it alleges active promotion of political beliefs. Even if treated as opinion, the honest-opinion defence requires the statement to indicate, expressly or impliedly, its factual basis. A general reference to a public subject matter may suffice in an appropriate case, but not where the claimant is not notorious for publicly expressed views or conduct.

The claimant, a journalist and author, brought a libel claim concerning an online Guardian article and a corresponding Observer publication. The words complained of described him as an “alt-right agitator”.

The court was asked to determine preliminary issues concerning the natural and ordinary meaning, an assumed innuendo meaning, defamatory meaning at common law, whether the words were fact or opinion, and, if opinion, whether the basis of the opinion was indicated for the purposes of section 3 of the Defamation Act 2013.

1. Meaning. The natural and ordinary meaning was that the claimant actively promoted far-right beliefs. On the assumed special knowledge, the innuendo meaning was that he actively promoted far-right, racist and white-supremacist beliefs. Both meanings were defamatory at common law because they tended to lower the claimant in the estimation of right-thinking people and had a substantially adverse effect on how people would treat him.
2. Fact or opinion. The description “alt-right agitator”, read in its context, was an assertion of fact. The word “agitator” described conduct, namely active promotion of the beliefs identified by “alt-right”. The statement was therefore not recognisable as opinion and section 3(2) of the Defamation Act 2013 was not satisfied.
3. Bare opinion. Alternatively, if the words were treated as opinion, they amounted to bare opinion. The article gave no indication of the claimant’s views, actions or publicly available material said to justify the description. The evaluative label therefore operated as an unexplained factual allegation.
4. Basis of opinion. Section 3(3) requires an indication, in general or specific terms, of the basis of the opinion. Following Joseph v Spiller, detailed facts enabling the reader to evaluate the opinion are unnecessary, but some indication of its factual underpinning remains essential. The article contained no such express or implied indication.
5. Kemsley v Foot. That case did not assist the defendant. It concerned a notorious public subject matter whose factual substratum could be implied from the comment. The claimant was not shown to be notorious for matters he had said or done, and his publications were not matters of general knowledge.
6. The preliminary issues were determined accordingly. The question whether the assumed innuendo facts were in fact known to a sufficient proportion of readers remained for the full trial.