Laurence Fox “paedophile” tweets ruled libellous, but “racist” counterclaim dismissed

Background

At the start of October 2020, the first Black History Month since the rise to prominence of the BLM movement in UK public life, Sainsbury’s tweeted that it was celebrating Black History Month and followed up with the following tweet on a rainbow background: “We are proud to celebrate Black History Month together with our Black colleagues, customers and communities and we will not tolerate racism. We proudly represent and serve our diverse society and anyone who does not want to shop with an inclusive retailer is welcome to shop elsewhere.”

On 4 October 2020 at 10.45 a.m. Mr Fox, an actor and political activist, quote-tweeted the above Sainsbury’s tweet, adding: “Dear @sainsburys, I won’t be shopping in your supermarket ever again whilst you promote racial segregation and discrimination. I sincerely hope others join me. RT #BoycottSainsburys.”

On the same day, at 5:11 p.m., Simon Blake, a former trustee of LGBTQ+ charity Stonewall, quote-tweeted Mr Fox’s tweet under the comment: “What a mess. What a racist twat.” At 5:19 p.m. Colin Seymour, a former competitor in RuPaul’s Drag Race UK, quote-tweeted Mr Fox’s tweet under the comment: “Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.” At 4:45 p.m. Nicola Thorp, a Coronation Street actor, tweeted: “Any company giving future employment to Laurence Fox, or providing him with a platform, does so with the complete knowledge that he is unequivocally, publicly and undeniably a racist.”

Mr Fox responded in turn by tweeting:

• “Pretty rich coming from a paedophile” (at 5.29 p.m. in response to Mr Blake).
• “Says the paedophile” (at 5.30 p.m. in response to Mr Seymour).
• “Hey @nicolathorp. Any company giving future employment to Nicola Thorpe [sic] or providing her with a platform does so in the complete knowledge that she is, unequivocally, publicly and undeniably a paedophile” (at 5.51 p.m. in response to Ms Thorp).

At 6.24 p.m. the same day, Mr Fox tweeted:

“Language is powerful. To accuse someone of racism without any evidence whatsoever to back up that accusation is a deep slander. It carries the same stigma and reputation destroying harm as accusing someone of paedophilia. Here endeth the lesson.”

Mr Fox deleted the “paedophile” tweets the following day.

Pre-determined preliminary issues

The preliminary legal issues had already been determined and set out in the judgments of Mr Justice Nicklin in the High Court^[2] and Lord Justice Warby in the Court of Appeal.^[3]

Claim

The “single natural and ordinary meaning” of Mr Fox’s use of the word “paedophile” in his responses to Mr Blake and Mr Seymour 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”. This was an allegation or imputation of fact, which was defamatory at common law.

By contrast, in his response to Ms Thorp, Mr Fox had quote-tweeted her allegation and reproduced her tweet simply substituting in the word “paedophile” for the word “racist”. Accordingly, the Court of Appeal did not consider the use of the term “paedophile” in that context to be defamatory, as the word was clearly being used rhetorically, and Ms Thorp’s claim was dismissed.

Counterclaim

The “single and natural ordinary meaning” of the term “racist” in the counter-defendants’ tweets was simply that the defendant was a racist. That was an expression of opinion and was defamatory at common law.

The High Court judgment noted that Mr Blake and Mr Seymour had quote-tweeted Mr Fox’s tweet in their response, which would appear to the ordinary reasonable reader to be the basis of a comment that the defendant was a racist. As Ms Thorp had failed to quote-tweet Mr Fox’s tweet in her response, both the High Court and the Court of Appeal ruled that she would be unable to satisfy the defence of honest opinion, as her tweet “did not indicate whether in general or specific terms the basis of her opinion”. As such, Ms Thorp would have to rely on a defence that her allegation was “substantially true”.

High Court ruling on serious harm

Mrs Justice Collins Rice noted that the Lachaux judgment is the leading authority on serious harm, and that the threshold test is to be determined by reference to the actual facts about the impact of a publication, not simply the meaning of the words.^[4] Yet, if a publication has an effect on any mass readership, Lachaux established that an inferential case based on the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities may discharge the evidential process. Collins Rice J emphasised, though, that drawing inferences could not be “speculative guesswork”, and any inference of fact drawn by the court must be “an evidential process” whereby evidence adduced enables a further inference of fact to be drawn.

Claim

Collins Rice J noted that the term “paedophile” was an inherently visceral allegation, from which the likelihood of serious harm is plain. She was also satisfied that this was a mass-publication case based on of the eye-catching allegations and the fact that Mr Fox’s Twitter following was around 250,000 at the time. Even though the tweets were deleted within a day, they had circulated widely by that time.

Collins Rice J considered the following factors in determining serious harm on the facts of this case:

• Both claimants were gay men with a public profile, and there persists a homophobic trope of a connection between being a gay man and being a likely paedophile, which these tweets perpetuated.
• Both claimants had worked with children in circumstances in which utmost proprietary (especially in relation to any form of sexual matters) was of the essence.
• Coincidentally, each claimant shared a name with a convicted child sex offender. So, if someone were to read Mr Fox’s tweet and type “Simon Blake / Crystal [Colin Seymour’s stage name] paedophile” into Google, it would have shown results of men with those names who had been convicted of child sex offences.
• Neither claimant had said or done anything remotely to justify casting the shadow of paedophilia over them.
• Mr Fox’s tweets would have appeared to the ordinary, reasonable Twitter user as a literal allegation of fact. The ordinary, reasonable Twitter user would not have realised that Mr Fox was trying to make a rhetorical point about the reputational damage caused by labelling someone a racist being tantamount to labelling someone as a paedophile.
• There was certainly an adverse reaction to both claimants on Twitter, which continued up until the hearing of the case, in addition to a show of support for both claimants (which itself indicates the harmful impact of the tweets).
• Mr Fox took a number of steps to limit the impact of his allegations, including deleting the tweets.

Ultimately, Collins Rice J ruled that the facts and evidence presented to the court meant that it was more likely than not that Mr Fox’s “paedophile” tweets caused, or were likely to cause, serious harm to the claimants’ reputations.

Counterclaim

Mr Fox argued that the claimants’ accusations that he was a racist ruined his acting career and caused his agent to drop him.

Collins Rice J considered the following factors:

• To be called a racist is deeply derogatory, but these were clearly expressions of opinion and not of fact.
• “Racist” is a term that Mr Fox has used regularly himself in public. In fact, his tweet to Sainsbury’s accused them of promoting racial segregation and discrimination.
• This was a mass-publication case, as all the counter-defendants had a public profile and none of them retracted their opinions. Additionally, the object of their criticism was a person in whom the public had taken a lively interest regarding these matters, and who had just launched himself as leader of a political party.
• The allegations of racism were opinions offered in the context of a lively exchange of ideas which Mr Fox had himself stimulated. Mr Fox also greatly expanded the reach of the accusations of racism against him by responding to the tweets, and a person cannot complain of serious harm caused by their own republication of accusations.
• There was no witness evidence adduced from Mr Fox’s agent as to why she had “dropped” him. There were a number of reasons why she might have left him, including, but not limited to, a dispute between the two in September 2020 over Mr Fox’s #AllLivesMatter sign-off. It was most likely that this was a business decision by Mr Fox’s agent, reached on a commercial and multifactorial basis.

Collins Rice J concluded that there was no prima facie probability that any serious reputational harm was causally connected to the tweets complained of: the only causal evidence arose from Mr Fox’s subjective assertions. The court also took into account, albeit more narrowly, that Mr Fox himself – both by stoking the call to boycott Sainsbury’s and by virtue of his “paedophile” responses – potentially contributed to any reputational harm caused.

Accordingly, Mr Fox could not prove that the tweets in question had caused him serious harm, and his counterclaim failed.

Pleaded defences

Mr Fox relied on the common-law qualified privilege defence of “reply to attack”, which Collins Rice J noted is a high bar to clear. The judge concluded that the paedophile allegations had no connection with the racist allegations, and Mr Fox’s tweets were “escalatory and disproportionate”. As such, the “reply to attack” defence was unsuccessful, and Mr Fox was held liable for his tweets.

Mr Blake and Mr Seymour pleaded the statutory defences of truth and honest opinion. Collins Rice J refused to determine the applicability of the defences, as she was reluctant to wade unnecessarily into the territory of whether there was substantial truth in labelling Mr Fox as a racist: that was a highly politicised issue and would bear no significance to the outcome of the case.

Comment

Mr Fox has indicated that he intends to appeal the decision. Separately, he is also suing another Twitter user, who he claims made “seriously defamatory allegations of racism” against him in four tweets sent over the course of May 2023.

When it comes to the law of defamation as it relates to tweets, the High Court’s decision shows the importance of providing context in individual tweets and not relying on later tweets to caveat a potentially defamatory allegation. It is conceivable that Mr Fox might have been able to argue successfully that the natural and ordinary meaning of the word “paedophile” in his tweets to Mr Blake and Mr Seymour was purely rhetorical (rather than accusatory), had his individual tweets not been so short and direct. Even though Mr Fox claims that making this rhetorical point was his intention, for these purposes subjective intention is irrelevant if the ordinary, reasonable reader would interpret the words used differently.

This judgment also built on recent judgments addressing post-Lachaux “inferential cases” where a publication has had an effect on a mass readership. Collins Rice J was at pains to emphasise that serious harm cannot be inferred purely based on the Lachaux factors in the absence of any evidence; instead, any inference drawn must be grounded in a factual matrix, which itself must be clearly established by evidence. Accordingly, as Mr Fox could not support his claim that he was dropped by his agent with clear witness testimony, he failed to prove serious harm.

Finally, it is interesting that the judge refused to be drawn into making a decision on whether the counter-defendants’ defences of truth and honest opinion would have succeeded. The judge emphasised that, while the courts should not shy away from difficult assessments of cultural standards where the law requires, it would be unnecessarily reckless to do so when not legally required.

Article written for Entertainment Law Review.