You might recall our column in June of this year which discussed the issue of “Judge v. Jury” – the column was prompted by the libel case involving Laurence Fox because he attempted (and failed) to secure a trial by jury in a libel claim in which he is the defendant, but is also counterclaiming.
Well, the case is featuring in this column again because last week Mr Justice Nicklin heard a trial of preliminary issues.
First, the background….
Mr Fox is being sued for libel by Simon Blake, star of RuPaul’s Drag Race Crystal, and actress Nicola Thorp following Tweets he published in October 2020. The Claimants had each published Tweets accusing Mr Fox of racism following comments he had made in relation to Sainsbury’s stance on Black History Month. In response, Mr Fox called the three claimants “paedophiles”.
The three claimants are suing for libel, and Mr Fox is counterclaiming for libel in relation to their original Tweets accusing him of racism.
The trial of preliminary issues is now a well-established stage in a libel claim where the court deals with issues such as the meaning of the words, and whether the words are a statement of fact or an expression of opinion – thus allowing the parties to have a better grasp of their respective positions, which will either prompt settlement of the claims or ensure the parties are better prepared to present their cases at trial.
In written submissions to Mr Justice Nicklin in advance of last week’s hearing Mr Fox’s barrister argued that Mr Fox’s tweets were “vulgar abuse” and would not have been taken as statements of fact by those who read them. It was argued that readers would understand that “two can play at that game of making extremely serious allegations that have no factual basis whatsoever”. Furthermore, the statement was not meant literally and readers would not take the allegation seriously, given that it was made “off the cuff”.
Mr Fox’s case was also that the three claimants had made an allegation that Mr Fox was racist “on no proper basis”.
Lawyers for the claimants argued that the allegation of being a “paedophile” is not a common insult, and is a word which has a damaging impact – “the kind of thing that sticks”. They went further, in saying that “even on Twitter there are limits and calling someone a paedophile is not mere abuse”.
The Claimants also argued that the allegations of racism which they made against Mr Fox were “indelibly comment” – i.e. expressions of opinion.
Mr Justice Nicklin found in favour of the claimants in respect of Mr Fox’s Tweets – he found that they were factual statements and would have been understood to mean each of the three “was a paedophile and who had or was likely to engage in sexual acts involving children, such acts amounting to serious criminal offences”. Mr Justice Nicklin went on to rule that the statement was defamatory, which he said Mr Fox accepts, and that it cannot “qualify as mere abuse”.
Turning his attention to Mr Fox’s counterclaim, Mr Justice Nicklin ruled that the statements made by Simon Blake, Crystal and Nicola Thorp were statements of opinion, and were “very different” to the allegations made by Mr Fox. Although the reasoning is not yet clear, Mr Justice Nicklin also ruled that Nicola Thorp cannot bring a defence of honest opinion.
So, when is a statement one of opinion, rather than one of fact?
The answer, as always, is “it depends”. That is to say that there is no hard and fast rule, but these are points of guidance taken from the leading case on the issue (Koutsogiannis v Random House – paragraph 16):
- “The statement must be recognizable as fact, as distinct from an imputation of fact.
- Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.
- The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
- Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that the claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
- Whether an allegation that someone has acted “dishonestly” or “criminally” is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.”
Whilst the five guidance points are very useful, it is clear that it is not easy to distinguish between a statement of fact and one of opinion, and the answer very much depends on the precise facts of the case.
In a different context, could calling someone a paedophile be considered a statement of opinion? Probably, yes. Are there circumstances in which accusing someone of being racist would be considered a statement of fact? Probably, yes.
Given the complexities surrounding the distinction between statements of fact and opinion, it is sensible to refer to the above five points whenever a statement is published where the publisher would look to define it as opinion in order to look to the honest opinion defence in the event of a complaint.
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November 15, 2022 at 01:35PM
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