Blake and ors v Fox

In response to Sainsbury’s supermarket Twitter-based support for an employee diversity and inclusion policy, Mr Fox had posted a tweet calling for a boycott of the supermarket.

Subsequently, Mr Blake, Mr Seymour and Ms Thorp had responded with tweets referring to Mr Fox as a “racist”. Mr Fox, in turn, had called each of them a “paedophile”. Consequently, Mr Blake, Mr Seymour and Ms Thorp brought claims in libel and Mr Fox brought a counterclaim also in libel.

At the earlier trial of preliminary issues, Mr Justice Nicklin determined that the natural and ordinary meaning of Mr Fox’s tweets was that “each of the Claimants was a paedophile, someone who had a sexual interest in children and who had or was likely to have engaged in sexual acts with or involving children, such acts amounting to serious criminal offences. That was…an allegation of fact”.

As regards Mr Blake, Mr Seymour and Ms Thorp’s tweets, Nicklin J found that the meaning was that the defendant was a racist, and that “was an expression of opinion, and obviously so”. The Judge declined to further define the term ‘racist’.

On appeal, the Court of Appeal upheld Nicklin J’s judgment save as concerned Ms Thorp, in respect of whom the Court held that the ordinary reasonable reader would have understood the defendant’s assertion of her being a paedophile to be a rhetorical device, rendering the assertion non-defamatory. As a result, Ms Thorp abandoned her claim, although the counterclaim against her persisted, meaning that she remained a party to the case.

1. Whether the tweets referring to Mr Blake and Mr Seymour as paedophiles had caused or were likely to cause serious harm to each of their reputations;
2. Whether the tweets referring to Mr Fox as a racist had caused or were likely to cause serious harm to his reputation;
3. Whether Mr Blake and Mr Seymour could rely on the defence of honest opinion;
4. Whether Ms Thorp could rely on the defence of truth;
5. Whether Mr Fox’s tweets attracted qualified privilege at common law in the form of ‘reply to attack’.

On the balance of probabilities, Mr Fox’s tweet had caused or was likely to cause serious harm to Mr Blake and Mr Seymour’s reputations. The allegations were of fact and were inherently very grave; an assertion of paedophilia was one of the most serious it was possible to make. Moreover, the allegation of being a paedophile assumed further gravity in the context of the two claimants because both had a public profile in respect of their being gay men, thus the allegation was more likely to cause serious harm because the homophobic trope of equivalence between homosexuality and proclivity for paedophilia “was the petrol-sodden reputational rag onto which Mr Fox’s incendiary tweets landed”. In addition, both men worked with children in the course of their professions and, by coincidence, shared their names with convicted paedophiles, which could easily be found through an online search.

As regards the extent of publication, it was significant, Mr Fox’s tweets having been reported upon extensively and continued to circulate even after the tweets complained of had been deleted. Moreover, the evidence before the Court demonstrated an actual, as opposed to potential, adverse reaction against the two claimants following the publication of Mr Fox’s tweets.

Mr Fox’s qualified privilege defence failed as his responses travelled outside the ambit of reply to attack. The tweets had been, the Judge held, mere retaliation, with no apparent connection to the tweets Mr Fox had quote tweeted.

As regards the counterclaim, Mr Fox failed to establish that Mr Blake, Mr Seymour and Ms Thorp’s tweets had caused his reputation serious harm. Whilst the allegations of racism were deeply derogatory, each was an expression of opinion and had been deployed in the wider context of an ongoing (and emotive) debate concerning what constituted racism.

Moreover, although the tweets had been circulated sufficiently widely for the matter to be considered a mass publication case, it was relevant that the tweets may not have reached such a large audience had Mr Fox not published his ‘paedophile’ replies, Mr Fox’s responses being the catalyst for publicity over the exchanges. Collins Rice J noted that a large number of individuals had referred to Mr Fox as a racist following his Sainsbury’s tweet, but those had not received the same publicity.

Finally, there was insufficient evidence that the tweets had had a detrimental effect on his acting career, which was one of the central planks of Mr Fox’s case on serious harm. Mr Fox was, the Judge held, unable to establish a causal link between the tweets being published and the negative impact on his reputation, particularly in light of other alternative explanations for such an impact, such as Mr Fox’s highly publicised appearance on Question Time and his subsequent public interventions on racism.

Accordingly, it was unnecessary to consider the substantive defences Mr Blake, Mr Seymour and Ms Thorp had advanced.

This case marks another in a line of recent decisions where serious harm has failed on causation grounds. The so-called ‘rule in Dingle’ (ie that a defendant cannot mitigate damages by pointing to other publications to the same effect as theirs) remains a potential stumbling block for defendants seeking to rely on other publications in defence of a libel claim. Yet, cases such as Miller v Turner, Dyson v MGN and now Blake v Fox demonstrate a willingness from first instance judges to consider the publications complained of against the backdrop of earlier, similar allegations, or alternative potential sources of reputational harm, thereby potentially side-lining the rule in Dingle.

Moreover, and relatedly, the case is of note for Collins Rice J’s consideration of pre-existing publications and Mr Fox’s own behaviour to, in effect, rely upon evidence of pre-existing bad reputation when determining if the section 1 threshold had been surpassed. By doing so, the decision provides an example of the potential tension between scrutiny of causation and the concern expressed by the courts, such as by the Court of Appeal in Banks v Cadwalladr, about attempts by defendants to rely on evidence of pre-existing bad character to defeat an inference of serious harm to reputation.

Finally, this case also provides a useful example of the differing inherent gravity that may attach to a statement of fact versus an expression of opinion.