Lawrence Fox, the Twitter storm, and serious harm
07/02/2024
Last week, judgment was handed down both in the long running libel case brought against Lawrence Fox, and in his associated counterclaim.
The case received a good deal of publicity simply because of the identities of the parties, but from a legal perspective, it raised a number of interesting legal issues which are worth explaining because of their relevance to journalism and journalists.
The bottom line - Simon Blake and Colin Seymour were successful in their libel claim in relation to Mr Fox’s “paedophile” tweets, and his counterclaim (relating to the “racism” accusations made by Mr Blake, Mr Seymour, and former actress Nicola Thorp) was unsuccessful because of a lack of serious harm to his reputation.
Many readers of this column will be familiar with the basic background of the case, so here’s the (fairly!) brief version…
In October of 2020 Sainsbury’s tweeted its support for Black History Month, and invited anyone “who does not want to shop with an inclusive retailer” to shop elsewhere.
Against a backdrop of having made several controversial comments expressing his views on what constitutes “racism” in the preceding weeks and months, Lawrence Fox retweeted Sainsbury’s post and added “I won’t be shopping in your supermarket ever again whilst you promote racial segregation and discrimination”, with the hashtag “#BoycottSainsburys”.
Mr Fox’s tweet faced some fierce backlash, which included engagement from Mr. Blake, Mr. Seymour, and Ms Thorp, which accused Mr Fox, in varying forms of words, of being “racist”.
In response, Mr Fox, again in varying forms of words, called Mr Blake, Mr Seymour, and Ms Thorp “paedophiles”.
At a trial of preliminary issues in 2022, Mr Justice Nicklin ruled that the “paedophile” allegations made by Mr Fox were a statement of fact, whereas the allegations of racism made by Mr Blake and Mr Seymour were statements of opinion. In contrast, the racism allegation made by Ms Thorp was deemed to be a statement of fact.
Mr Fox’s tweet towards Ms Thorp which accused her of being a “paedophile” was phrased differently to those he made towards Mr Blake and Mr Seymour, and in context, was ruled not to carry a defamatory meaning at common law. Ms Thorp’s claim against Mr Fox therefore failed, but Mr Fox continued his counterclaim against all three of the initial claimants.
Serious Harm
Much of Mrs Justice Collins Rice’s 41 page judgment focusses on serious harm and whether the
test contained in Section 1(1) of the Defamation Act 2013 was satisfied.
In relation to the claims by Mr Blake and Mr Seymour based on the “paedophile” tweets, Collins Rice J. found that the serious harm test had been met.
Since the implementation of the serious harm test, the courts have accepted that in “mass publication” cases such as this one, it is not practicable to require evidence of the impact the publication has had on readers. Instead, the court will consider an “inferential” case where it assesses:
- the meaning of the words;
- the situation of the claimant;
- the circumstances of the publication; and
- the inherent possibility that serious harm was caused.
Collins Rice J. ruled that the allegation in question - that of being a paedophile - is so serious that it was inherently likely to cause serious harm. It was also relevant that Mr Fox was a famous publisher and that there was substantial onward distribution of the allegations. When considering the situation of the Claimants, it was also relevant that both of them were gay men who worked with children, who had unblemished reputations and had never been accused of paedophilia before.
These and other relevant factors led the Judge to rule that the serious harm test had, in fact, been met.
Conversely, in the counterclaim against Mr Blake, Mr Seymour, and Ms Thorp regarding the allegations of racism, Mrs Justice Collins Rice found that the serious harm test had not been satisfied by Mr Fox.
Mr Fox had not proved on the balance of probabilities that the statements had, or were likely to cause, serious harm to his reputation. The following two excerpts are key in the Judge’s reasoning:
“This is a case….in which there are very many alternative explanations or sources of causative negative impact on Mr Fox’s reputation in general in the matter of racism, and on his career in particular – his own stimulation of controversy, the hostile views of the profession, the pandemic, his diversion into a political career, and the sheer number of other people who had joined in the debate he had publicly stimulated and taken public exception to his pronouncements as being racist. I have to take this into account in considering the probable causative impact of the tweets complained of.”
…..
“Indeed, it might be said with some justification that the only clearly visible objective explanation for these particular tweets being sued on is that their authors had taken exception to being called paedophiles and issued a libel claim against Mr Fox. I am not satisfied of any sufficient basis for an inference that their allegations of racism – rather than any others, or any other operative cause of harm to Mr Fox’s career as an actor such as those outlined above – inflicted serious harm on Mr Fox’s reputation. The groundwork for such an inference is simply not there. The serious harm test is not squarely addressed, and Mr Fox’s burden is not discharged.”
At this point, whilst Mr Fox’s counterclaim had failed due to a lack of serious harm, he still needed to plead a defence to his “paedophile” tweets in relation to Mr Seymour and Mr Blake.
Mr Fox’s defence
With a statement of fact that someone is a “paedophile”, the defence options were somewhat limited, and Mr Fox pleaded a common law qualified privilege defence, that his tweet was a response to an unwarranted attack.
The ‘response to unwarranted attack’ defence is not one which is pleaded very often, and in this case it was unsuccessful, with Mrs. Justice Collins Rice stating that it was “hopeless”. The judgment noted:
“He responded to an opinion comment critical of his call to boycott Sainsbury’s on grounds of ‘racial segregation’ with utterly random, and harmful, factual allegations of criminal paedophilia…This is the very epitome of ‘mere retaliation’ – an escalatory and disproportionate response by way of entirely irrelevant statements.”
In relation to the little known defence which Mr Fox had pleaded, the Judge went on to say:
“The ‘reply to attack’ qualified privilege is not a licence to defame. No authority to which I was referred comes anywhere near suggesting that it could or should provide an answer to these claims on the facts of the case.”
Mr Blake and Mr Seymour were therefore successful in their libel claims, and the level of damages will be decided at a later hearing.
Honest Opinion & Substantial Truth
Unfortunately (for outside observers, at least!), as a consequence of Mr Fox’s counterclaim failing due to a lack of serious harm, Mrs Justice Collins Rice did not need to address whether Mr Blake and Mr Seymour would have succeeded in their honest opinion defence, or whether Ms. Thorp’s “truth” defence would have succeeded.
But nevertheless, the judgment is significant because it confirms the importance of the serious harm test in weeding out unmeritorious claims - which is what our lawmakers always intended when it was included in the Defamation Act nearly 11 years ag