Kirkegaard v Smith

The claimant bought an action in libel against the defendant over four publications: three posts made in a comment thread below an article on an alternative news website; and a tweet published from the defendant’s Twitter account.

The claimant contended that the meanings of the publications complained of were that he was a sexual abuser of children.

The defendant contended that the meanings of the publications complained of were, broadly, that the claimant was an apologist for paedophilia, and such meanings constituted expressions of opinion as opposed to statements of fact.

The parties consented to having the issues of meaning and fact/opinion dealt with as a trial of these issues as a preliminary issue. In May 2019 Mr Justice Warby directed that such a trial be heard.

1. The meaning(s) borne by each of the four publications complained of.

2. Whether such meaning(s) were statements of fact or expressions of opinion.

1. The natural and ordinary meanings of the words and photographs complained of were:

Comment one:

• The claimant supports the possession of animated child pornography and wishes to see it legalised and is a paedophile;
• His writings concerning pubescent and pre-pubescent children, and the distinction that he draws, supports the viewpoint that he is a paedophilia apologist.

Comment two:

• The claimant is an apologist for paedophilia;
• Any right-thinking person would regard him as vile and a paedophile;
• He is in favour of animated pornography involving babies, supports possession of it which he considers ought to be lawful, and has published material that is critical of Sweden and Norway for having laws against it.

Comment three:

• The claimant supports legalising baby pornography because he has written an essay defending animated baby pornography;
• The claimant is a paedophile apologist because he expressed himself not to have thought about it for some years when asked if he supported possession or legalisation of it, whereas a non-paedophile apologist would have been unquestionably against it;
• The claimant has adopted arguments which those who apologise for paedophilia utilise;
• The claimant supports the right of adults to have sex with children under the age of consent and that he believes that raping children whilst they sleep would not cause harm.

The tweet:

• a. That the claimant’s own writings demonstrate that he supports child rape and supports paedophila;
• b. That anyone making such an observation can anticipate being the subject of retaliation or unspecified vindictive behaviour but, presumably, online abuse such is the nature of the claimant’s unpleasant character.

2. The meanings, as set out above, were expressions of opinion as opposed to statements of fact.

This judgment deals with a number of issues relevant to the fact/opinion divide, most notably the importance of taking context into account when assessing the words complained of. It also provides an example of a judge making a finding that hyperlinked material was relevant to assessing meaning.