Greenstein v Campaign against Antisemitism

Reference: [2020] EWHC 2951

Court: Queen's Bench Division

Judge: Mrs Justice Tipples

Date of judgment: 6 Nov 2020

Summary: Defamation - Libel - s3, Defamation Act 2013 - Honest Opinion - Malice - Truth - Spent Convictions - Whether the Defendant should be granted summary judgment - Whether the malice plea should be struck out - Data Protection - Misuse of Private Information - Spent Convictions- Abuse of Process

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Appearances: Adam Speker QC - Leading Counsel (Applicant) 

Instructing Solicitors: RPC LLP for the Defendant

Facts

The Claimant, an individual who describes himself as ‘a well-known political activist with a focus on issue related to anti-racism, anti-fascism and Palestine‘ sued the Campaign against Antisemitism (‘CAA’) for libel, misuse of private information and breach of statutory duty under the Data Protection Act, in respect of five articles published on the CAA’s website on 26 February 2017, 30 July 2017, 25 September 2017, 3 January 2018 and 24 January 2018.

At a trial of preliminary issues on 15 February 2019, Nicklin J held that the first article bore four meanings: (a) that the Claimant was antisemitic; (b) that he had lied when he claimed in The Guardian that the International Definition of Anti-Semitism prevents criticism of Israel; (c) that he had lied to the Charity Commission when he claimed that the CAA was a right-wing political Zionist organisation that is not concerned with fascist groups who were antisemitic Holocaust deniers; and (d) that he had committed several criminal offences including offences of dishonesty, vandalism and drug possession.

The Judge held that the meaning at (a) was an expression of opinion. The meanings at (b) and (c) were also expressions of opinion. The meaning at (d) was always accepted to be a statement of fact. The Judge further held that the second article bore the meaning at 1(a) above which was also held to be an expression of opinion and the third, fourth and fifth articles also bore the meaning at (a) above, which would also have been understood to be an expression of opinion.

Following that hearing, the CAA applied for summary judgment and/or to strike out the claims.

Issue

  1. The court, having found that the words complained of meant that the Claimant was an antisemite and that that meaning was an opinion and the statement complained of indicated as much, whether the Defendant is entitled to summary judgment on the basis that, on any admitted fact which existed at the time (26 February 2017, being the date the First Article was published), an honest person could hold the said opinion about the Claimant.
  2. The court, having found that the words complained of meant that the Claimant had lied when he claimed in The Guardian that the International Definition of Anti-Semitism prevents criticism of Israel and that that meaning was an opinion and the statement complained of indicated as much, whether the Defendant is entitled to summary judgment on the basis that, on any admitted fact which existed at the time (26 February 2017, being the date the First Article was published), an honest person could hold the said opinion about the Claimant.
  3. The court, having found that the words complained of meant that the Claimant had lied to the Charity Commission when he claimed that the Defendant was a right-wing political Zionist organisation that is not concerned with fascist groups who were antisemitic Holocaust deniers and that that meaning was an opinion and the statement complained of indicated as much, whether the Defendant is entitled to summary judgment on the basis that, on any admitted fact which existed at the time (26 February 2017, being the date the First Article was published), an honest person could hold the said opinion about the claimant.
  4. Whether the malice pleas at paragraphs 22 to 22(6)(d), 23.1, 25.1 and 26 (and sub-paragraphs thereof) of the amended reply should be struck out under CPR 3.4(2).
  5. Whether the data protection and misuse of private information pleas should be struck out under CPR 3.4(2)(b).

Held

  1. The CAA was entitled to summary judgment in respect of the meaning that the Claimant was an antisemite. An honest person could express that opinion based upon the tweets the Claimant had posted before 27 February 2017 and the Claimant had no real prospect of succeeding on this issue: [31];
  2. The CAA was entitled to summary judgment in respect of the meaning that the Claimant had lied when he claimed in The Guardian newspaper that the International Definition of Antisemitism prevents criticism of Israel. The Claimant had no real prospect of succeeding on this issue: [41]
  3. The CAA was  entitled to summary judgment in respect of the meaning that the Claimant had lied to the Charity Commission when he claimed that the CAA was a right-wing political Zionist organisation that is not concerned with fascist groups who were antisemitic Holocaust deniers. The Claimant had no real prospect of succeeding on the issue: [45]
  4.  The malice pleas would be struck out. The malice pleas under s3(5), Defamation Act 2013 directed towards the expressions of opinion was defective. It did not plead a proper case that the CAA’s trustee did not believe that C was an antisemite: [35]. It did not address the other two expressions of opinion. The malice plea directed towards the inclusion of spent convictions in the first article to defeat the defence of truth was also inadequate and defective: [55]
  5. The data protection and misuse of private information pleas would not be struck out. Whilst there was force in the submission that once the fourth libel claim had been struck out, there may be very little, if any, value in pursuing these claims, the court did not have sufficient information at this stage to conclude that the Jameel jurisdiction should be exercised: [64]

Comment

A decision demonstrating the width of the honest opinion defence in respect of a general meaning and a reminder of the need for a proper factual basis for pleading malice.