By Mark Amery —

Spiked is talking nonsense about the Laurence Fox libel ruling

Spiked magazine have published an article by their chief political writer, Brendan O'Neill, about the ruling against Laurence Fox in his libel case. I've seen it shared by a bunch of Twitter users I follow and by the Free Speech Union. It's a bad article.

Background

The case is certainly interesting if you care about libel law, freedom of speech, or the culture war. If you're unfamiliar, a quick summary of the background to the case is as follows:

  1. in October 2020, apropos of nothing in particular, Sainsbury's posted a bizarrely combative tweet about Black History Month, inviting customers who don't "want to shop with an inclusive retailer" to shop elsewhere
  2. Laurence Fox responded to that post with a now-deleted Tweet calling on people to boycott Sainsbury's for promoting racial segregation. Fox's post included a link to a separate announcement by Sainsbury's that they had introduced "safe spaces" for black employees, which was the basis for Fox's accusation of segregation.[1]
  3. three woke Twitter users responded by calling Fox a racist
  4. Fox responded by calling those three critics paedophiles. (It's the done thing...)
  5. the three woke critics responded to that by suing him for libel
  6. ... and finally Fox responded by countersuing them for libel for having called him a racist in the first place.

Even without digging further into the factual details, this summary raises, I think, some interesting questions of principle:

  • How should the law evaluate accusations of "racism", given that our society's current understanding of what that even means is bitterly divided? Should the contested nature of "racism" in the context of western society's current culture war over race mean that such a claim basically lacks any substantial meaning and can't be defamatory? (One can imagine similar questions over all sorts of vague, opinion-based accusations - for instance, what if someone were to publicly denounce you as "immoral", or "intellectually dishonest", or "a pervert"?)
  • How should rhetoric be handled? It seems obvious that a false accusation of paedophilia could be libellous in principle, and typically would be, but how should the law deal with the scenario where the speaker says that accusation wasn't actually intended to be believed by the reader? (For this was Fox's contention here: that the accusations of paedophilia were meant to be obviously false, and thus to highlight the nastiness and unfairness of flinging baseless accusations at people - which is, of course, how he sees the accusations of racism against him.)
  • Should there be any kind of principle that retaliation is fair game, and if so how far should that go?

Most coverage I've seen of the case, including that of the BBC, is disappointingly shallow, not exploring the legal details or implications for free speech at all. Brendan O'Neill's article in Spiked is the sole exception. The trouble is, it repeatedly makes seriously false claims about what the judgment actually says.

No defence of rhetoric in UK libel law?

A key implication in the Spiked article is that the courts simply ignored entirely Fox's claim to have been using the counter-accusation of paedophilia as a rhetorical device, and instead, robotically, took it as literally true. Consider the following passages, spread over a few paragraphs in the Spiked article:

It was a rhetorical game. A verbal stunt. A drawing of linguistic daggers. ...

And yet, the High Court has found against Fox. Taking literalism to dizzying new heights, the judge criticised him for failing to show that his allegations were true – yes, because they weren’t! I know judges are out of touch, but surely they’ve heard of rhetoric and humour. ...

... At an earlier stage of the Fox libel clash, the Court of Appeal ‘did not accept that the ordinary reasonable reader would obviously understand Fox’s complex rhetorical point that he was no more a racist than they were paedophiles’, as one legal observer summarised it. ...

‘The law affords few defences to defamation of this sort’, decreed the High Court. And that’s the problem. That the defence of rhetoric is not permissible under our libel laws is dreadful.

I will grant Spiked that they do at least note that the court opined on whether an ordinary reader would understand Fox's point is rhetorical. My beef is with the assertions that the judge acted as if she had not "heard of rhetoric and humor" and that "the defence of rhetoric is not permissible under our libel laws". That's just objectively not what happened.

In fact, though you'll find no hint of this in the Spiked article, Fox actually won his defence against one of the three claimants, Nicola Thorp, on precisely the grounds that the accusation against her was rhetorical! It was not the case that the courts acted as if it had not "heard of" rhetoric; rather, they simply judged that the "natural and ordinary meaning" of two of the tweets was to literally accuse the claimant of paedophilia. From part 44 of the judgment, summarising previous findings from the court of appeal:

i) The ‘single natural and ordinary meaning’ of Mr Fox’s tweets responding to Mr Blake and Mr Seymour (‘Pretty rich coming from a paedophile’ and ‘Says the paedophile’) was that ‘each of these 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. The imputation was ‘of defamatory tendency at common law’ – that is, in the meaning determined, it would ‘substantially affect in an adverse manner the attitude of other people towards a claimant, or have a tendency to do so’ ...
ii) Mr Fox’s tweet responding to Ms Thorp was different. He had quote-tweeted her allegation, and reproduced it simply substituting ‘paedophile’ for ‘racist’. ‘Mr Fox was not using the word ‘paedophile’ literally, to accuse Ms Thorp of being a paedophile; he was using that word rhetorically as a way of expressing his strong objection to being called a racist. Used in that way it was not defamatory’.... Ms Thorp had originally claimed in libel against Mr Fox on the basis of his tweet to her, but since it was found not to have any defamatory tendency, no tort could have been committed, and her claim was dismissed on that basis.

Later, when commenting more on how readers might have interpreted Fox's tweets, the judgment has more to say about this:

As a rhetorical device – even to the extent Mr Fox subsequently took pains to spell it out as being one – it was not well-calculated to be effective. It relied on a reader recognising both imputations – ‘racist’ and ‘paedophile’ – as immediately and equally incredible. But the context, for the readership, was first Mr Fox’s ‘boycott Sainsbury’s’ tweet, then the ‘racist’ tweets, and only then the (unexpected and unexplained) ‘paedophile’ tweets. The call to boycott Sainsbury’s was itself startling but evidently intended to be taken wholly literally, and the ‘racist’ responses were apparently heartfelt; any reader pondering the exchanges (and especially if they did not click through to the website) might be as likely to think (a) the ‘racist’ jibe had hit home and been met with an equivalently devastating counterblow against these particular individuals, since others had questioned or protested the boycott tweet without getting the same response, as they were to think (b) both jibes were patent nonsense.

You can certainly reasonably disagree with this, but hopefully this makes clear that Spiked is not merely steamrolling over nuances but peddling some outright falsehoods. Contra Spiked, the defence of rhetoric is available in our libel laws; the court simply wasn't persuaded that these particular statements were correctly understood as rhetorical, and outlined why this was so, in great detail!

Less consequential, but also untrue, is Spiked's claim that the court "criticised" Fox for failing to show that his accusation was true.[2] There's simply nothing like this in the judgment. The judgment does acknowledge the fact that Fox didn't attempt to show the accusation was true; for instance, in paragraph 166, near the end:

Mr Fox did not attempt to show these allegations were true, and he was not able to bring himself on the facts within the terms of any other defence recognised in law.

... but it strikes me as nonsense to characterise that passage, or any of the similar ones in the judgment, as "criticising" Fox for "failing" to show that the claimants were paedophiles.

Why no ruling on whether Fox is a racist?

O'Neill distorts other elements of the judgment, too. When it comes to Fox's counterclaim of libel for the claimants calling him racist in the first place, the Spiked article has this to say:

The court refused to make a ‘determination’ as to whether the accusation that Fox is racist is ‘substantially true’. That is not a question that can be ‘resolve[d] within the framework of this litigation’, the ruling weirdly says. What does this mean? Why can the High Court decree that it is defamatory to refer to three non-paedophiles as paedophiles, but it cannot decide if it’s defamatory to refer to a non-racist as racist? Do our libel laws only protect certain people against certain accusations? Seems iffy to me.

It looks to some of us as though this ruling implicitly upholds the right to call people racist. Or at least, the courts will not treat an unprovable accusation of racism as seriously as they will an unproveable accusation of paedophilia.

Contra O'Neill's implication here, the reason that the court doesn't evaluate whether Fox is racist is in fact clearly explained in the ruling. For a statement to be defamatory, it needs to both cause serious harm to the claimant's reputation and be untrue. The court found that Fox, whose views on race were already controversial and who had already been called a racist on Twitter before October 2020 (I observe that simply searching for the complete phrase "laurence fox is a racist", filtered to results before October 2020, finds dozens of tweets), did not suffer any serious reputational harm from a few extra tweets callng him a racist. Therefore it was moot whether or not he is a racist; there was simply no need for the court to rule on that question.

There are a few further things the judge noted in her ruling that I'd like to note here, though. One is that, had things gone differently, one of the defendants against Fox's counterclaim might indeed have faced the task of proving that Fox is a racist. From paragraph 58:

Because of the preliminary issues ruling that subsection (3) was not satisfied in her case, [the defence of honest opinion] is not available to Ms Thorp. Instead, she relies, if necessary, on being able to prove that the ‘imputation conveyed by the statement complained of is substantially true’ (Defamation Act 2013, section 2). ... It requires her to establish that it is substantially, objectively, true that Mr Fox is, in fact, a racist.

Also, the choice of what order to evaluate the elements of the tort of libel in is, to some degree, at the discretion of the court. Paragraph 163:

Cases turn on their facts. There are certainly examples in the authorities of cases disposed of on alternative bases of failure to establish serious harm and success on a defence. It may for example be that a case can be swiftly and efficiently disposed of where a strong and straightforward defence appears, but where the serious harm element is more complex, by concentrating on the former, even though the latter is a logical precedent stage. But this is not a case of that sort.

And finally, the court should, in the opinion of the judge, avoid opining on culturally controversial matters where it's irrelevant to the ultimate resolution of the legal matter before the court. From section 164:

I am very much aware that Mr Fox would have liked to leave court with a clear determination that he ‘is not a racist’, Ms Thorp with a determination that it is substantially true that he is, and Mr Blake and Mr Seymour with an endorsement that at least they genuinely thought so and an honest person could have thought so too. But the entire case is, in that sense at least, all about contested views of what does and does not amount to being ‘a racist’. ... Courts do not shy away from difficult assessments of contemporary cultural standards where the law requires them to. But where, as I have concluded, the law does not so require, because, by operation of statute and application of the serious harm test, an opinion on such a matter must in law be regarded as ‘not defamatory’, then courts must be properly circumspect about wading unnecessarily into such territory.

I've not seen it articulated before, but this seems like a good principle, to me! If it's not going to affect who wins the case, a judge shouldn't use a judgment as a soapbox from which to decree officially correct and incorrect positions on matters disputed in the culture war (such as whether Laurence Fox's stridently anti-woke views constitute "racism"). Brendan O'Neill bemoans this, but would he really want it otherwise?

I found it interesting that the judge chose to note the court's discretion about the order in which to consider each element of the definition of libel immediately before this paragraph. It seems to me that she means to imply - though she stops short of outright saying it - that where the opportunity arises, the courts should even evaluate elements of a tort or crime in an unconventional order if doing so will potentially allow them to dodge the need to directly rule on the merits of opposing views in the culture war.

But anyway, the answer to O'Neill's rhetorical question about why Fox and his opponents were treated differently is right there in the ruling: the court would have evaluated whether Fox was a racist, and issued a ruling one way or the other, if the case had depended upon that. But it didn't, essentially because the pre-existing controversy around Fox meant that no additional harm to his reputation from a few more tweeters calling him a racist was possible. None of that constitutes a "right to call people racist" or a different standard for accusations of racism versus paedophilia, as alleged by O'Neill.

(Aside: it's not a falsehood, but I want to note the irony of the fact that the paragraph discussed above, bemoaning a supposed judge-created "right to call people racist", appears immediately after a paragraph praising the more liberal libel laws in the USA, and asserting that due to our lack of a defence of rhetorical hyperbole, we "lag in liberty behind our American cousins". Unlike the UK, the US really does have a right to call someone racist! Such an accusation will basically always constitute "opinion" under US law, and statements classified as "opinion" cannot be libellous in the US. This protection of "opinion" statements is absolute; unlike in the UK, there are no further elements to the defence. You can call anyone you like a racist over there, with absolutely no factual basis for doing so whatsoever, even if you don't actually believe they are racist at all and you are consciously lying, and it's still perfectly legal. To the American mind, the right to do this is part of the fundamental right to free speech guaranteed by the First Amendment. I guess O'Neill is particular about which liberties he wants to copy from our American cousins. In fairness, on this point, I partially agree with him.)

Was there injustice here, then? Where was it?

All the above said, I think you can still very reasonably take issues with aspects of the ruling. The complaints I'd potentially make are just different to, or at least more nuanced than, those made in Spiked.

Despite my annoyance at the misrepresentations of the judgement that went along with it, I am at least sympathetic to one part of O'Neill's (and Fox's lawyer's) critiques of the judgments against Fox: the contention that the courts were far too ungenerous to the intelligence of the average Twitter user in finding that an "ordinary reasonable reader" would not understand Fox's tweets to be rhetorical. I certainly wouldn't expect many readers to actually believe the accusation or think that Fox had evidence substantiating it. Even so, I don't think it's obvious that the courts got this wrong; even if readers didn't believe the accusations were true, it doesn't mean they would understand them to be rhetorical, and I can easily imagine that many readers would instead simply think that Fox - perhaps in some kind of unhinged state - was carrying out a deranged act of retaliation by responding with baseless but literal accusations of paedophilia against his enemies. I think it was a genuinely hard call. I think I would've been unsure what the hell was going on if I had read Fox's tweets at the time that he posted them, which in turn makes it hard for me to confidently suggest, in hindsight, what an "ordinary reasonable reader" would've thought about them.

I am even more sceptical of the judgment's assessment of whether the claimants' reputations were caused "serious harm" by the paedo accusations. I note that in the TPI ("Trial of Preliminary Issues") where the courts first decided the "single ordinary meaning" of Fox's tweets, Justice Nicklin noted that it still mattered how people had actually intepreted them, since this would dictate whether "serious harm" had been done to anyone's reputation:

the Court has not resolved the issue of whether the Claimants in their claim, or the Defendant in his counterclaim, can satisfy the requirement to establish serious harm to reputation as required under s.1 Defamation Act 2013. This may well be a significant issue at any trial. For example, if the Defendant can establish that in fact a significant number of readers of his Tweets did understand them simply to be making a rhetorical comment about the baselessness of the Claimants' claims of racism against him, then the Claimants may struggle to demonstrate that they have been caused serious harm to their reputation.

This makes it sound like Fox would win the case as long as he could establish, basically, that nobody believed that what he said was true. Importantly, it seems to me that this could be either because they thought he was being rhetorical or just because they thought he was an unhinged lunatic lashing out with baseless (but literal) claims.

The final ruling against Fox, by Justice Collins Rice, caveats this somewhat:

I observe in this connection that, contrary to some of the submissions made to me on this point, it is not necessary for the claimants to establish the probability of readers being immutably convinced of the truth of an allegation. That is not how reputation works. Serious reputational harm can be caused by a change of view some considerable way short of that. It is often the insidious creation of a ‘bad odour’, together with the difficulty of establishing a negative, that does the most reputational harm. That is particularly apposite to an allegation of paedophilia. But the test does require that people’s minds were probably changed because of these tweets, and to a degree meriting the description of serious harm.

Okay, fair enough; if everyone goes from taking for granted that I'm not a paedo to not knowing who to believe and feeling like it's an open question whether I'm a paedo or not, I think it's still fair to call that serious reputational harm. But then, as evidence that anyone at all gave even partial credence to the accusation, the court relies heavily on the claimants getting abused on Twitter by trolls. The crucial paragraphs are 84-86:

There is certainly evidence of an adverse reaction to both men on Twitter, with paedophilia being cast back in their faces. It was put to me that, carefully read, many of these abusive responses either (a) indicate that the allegation was not in fact taken literally or seriously, or (b) can largely be dismissed as the utterances of deep-dyed Twitter trolls or homophobes who need little excuse.

I am unpersuaded that ‘careful’ reading is necessarily the right approach to the former category ... The probability – and the evidence as I read it – is that published reactions within the readership (at least from those who did not know the claimants) spanned the full spectrum from credulous to dismissive. That is usual in mass publication cases of any sort. I have not been given sufficient reason, from context or from evidence of reaction, to find enough apparent or likely scepticism, as a proportion of the whole readership, to be able to conclude it more probable than not that the seriously harmful potential of these tweets simply failed to be realised.

As regards the trolls and homophobes, those are labels that might be attached to the particularly credulous, hostile and/or responsive. But however little excuse they needed, it is obvious that Mr Fox provided one and set them an example. Online abuse is at least a possible signifier of serious reputational harm... I accept the evidence of it here.

I have not seen all the evidence of what Twitter users said that was put before the judge, and indeed I cannot find any of it on Twitter nor find the accounts of Simon Blake or Colin Seymour. So I concede that I am commentating while in possession of less evidence than the judge. But I note that pretty much any highly-viewed adversarial interaction on Twitter results in abuse; I am a nobody on Twitter and from time to time I trigger a flurry of insulting replies and quote-tweets for expressing even mildly controversial opinions. A vast torrent of abuse directed at the claimants was thus the inevitable consequence of getting into any kind of hostile interaction with Laurence Fox, even if not a single person found the paedophilia accusations even remotely credible. This seems to me like it no more constitutes evidence that anyone believed the paedophilia accusations than does the fact that the sun came up the next day; both are simply something that was inevitably going to happen either way. The court, though, seems to have started from a default presumption that mere existence of online abuse constituted evidence that the paedo accusation was given credence. My instinct is that this presumption is terribly unsound. (It might make more sense if the abuse on Twitter followed an accusation of paedophilia in a totally different venue, like a newspaper article, or even just if the abuse had persisted after the initial exchange between Fox and the claimants, but it doesn't sound like that's the case here. Rather, per the judge's own wording, we're talking about reactions to the Tweet - i.e. people on Twitter piling on to the fight that the parties had just got into on Twitter.)

The judgment gets worse, in my view, in paragraph 86 about "trolls and homophobes". Perhaps I am parsing her words wrongly, but it seems to me that in this paragraph the judge is no longer even using the Twitter abuse as evidence of anyone believing the paedophilia accusation, but rather is saying that people merely using Fox's post as an "excuse" to abuse the claimants can still constitute a serious reputational harm even if they didn't put any credence in Fox's accusation at all. That seems to me like a nonsensical interpretation of the concept of reputational harm; if the mechanism is simply that a bunch of Fox's followers saw Fox being nasty to his critics and thereby perceived that those critics were acceptable targets for further abuse, then - however ignoble that may be and however much Fox may be to blame for it - what does any of it have to do with anyone's reputation? Nothing at all, I would think, yet this scenario is somehow contemplated as a "signifier" of reputational harm in the judgment.

These dubious bases for inferring reputational harm seem to me like bigger problems with the judgment than the interpretation of Fox's meaning. Contra Spiked, declining to treat Fox's tweet as rhetorical doesn't strike me as the core of the unfairness here; certainly it seems to me it was poorly-conceived enough that many readers will have taken it as a literal accusation made out of spite, even if this wasn't intended, and it's fair enough for such a miscalculation to put you at risk of a libel lawsuit if the accusation actually harms the other party's reputation. But to me, common sense would seem to dictate that even people failing to see the rhetorical point in Fox's tweet would still realise it obviously wasn't true; the dilemma of interpretation any sensible reader faced was not between the accusation being a rhetorical device and the accusation being true, but between the accusation being a rhetorical device and the accusation being literal but baseless, cast in spite and anger by Fox in a moment of madness. Nobody reads a totally unexplained accusation of paedophilia cast during a slapfight on Twitter and infers that the accuser must have some secret basis for the claim and that it's totally true - they simply assume the accuser is nuts!

The judge doesn't seem to have contemplated this point - that even people who didn't understand Fox's rhetorical point still generally would not have believed the accusation to be true or even credible. I view that as a huge mistake of reasoning, and suspect that it, in combination with the dubious approach of treating a pile-on on Twitter as evidence that people believed Fox's accusation, has led the judge to hallucinate reputational harm to the claimants that simply doesn't exist, seems rather implausible, and doesn't really have any evidence to support its existence.

Elements of how the counterclaim got handled seem problematic too

Though Fox was the overall loser of the case (all his counterclaims failed and two out of three of the original claims against him succeeded), there was one detail in the courts' handling of his counterclaims that I think is worth highlighting. Two out of three of the people who called Fox a racist did so in quote-tweets; the other, Nicola Thorp, did not. As a consequence of this, she lost her ability to use UK law's "honest opinion" defence. The trouble is that the statute codifying the defence requires that your statement indicate the basis of your opinion in order for the defence to apply. So you can say "based on this tweet, Laurence Fox is a racist", and the defence will apply (as long as you also convince the court of some other, easier elements about holding the opinion honestly). You can quote-tweet something race-related that Laurence Fox has posted and say "Laurence Fox is a racist" and the defence will likewise apply. But if you just say "Laurence Fox is a racist", without indicating your basis for this belief, then you can't use this defence. This is why, had the court ruled that Fox's reputation was damaged by the tweets calling him racist, Thorp - and Thorp alone - would've been dragged into the farce of having to establish:

that it is substantially, objectively, true that Mr Fox is, in fact, a racist.

This is probably a correct application of the law as it is written. But it seems manifestly silly. The basis for Thorp's opinion was not indicated in her tweet but could be easily guessed at from the context; who cares that she didn't explicitly indicate it?

I understand the motivation behind the requirement to indicate your basis. Forget Fox, for a moment, and suppose that you were to label some random person who has never publicly said anything contentious about race in their life a "racist". The accusation - even if you think it is properly understood as a statement of opinion - surely implies the existence of some kind of scandalous non-public facts that serve as a basis for the accusation - it's just not clear exactly what they are. If you're not required to articulate any basis for such an opinion, you can damage reputations by insinuating that some such scandalous facts exist, through statements of opinion that the reader assumes surely must have some basis, all without ever alleging any specific defamatory facts as a justification for your opinions. US libel law, as I understand it, permits precisely this tactic; I'm not persuaded that's a good thing, or that it's wrong for us to want to be stricter in this area.

But it seems to me that we're too strict, and the results can easily be absurd when the target is a public figure like Laurence Fox. If I say that Boris Johnson is dishonest, that Jeremy Corbyn is a terrorist sympathizer, or that Tiger Woods was a bad husband, people with some basic knowledge of those individuals are aware of facts that might lead me to say such a thing, and are capable of inferring that my opinion (which they may or may not agree with) is probably based on those widely-known facts. The same is true if I say that Laurence Fox is a racist; he has notoriously said controversial things about race and you will implicitly understand these to be the basis of my opinion, whether you agree with it or not. (This is even more true if I call him a racist minutes after he's said his latest controversial thing about race on Twitter, like Thorp did!)

If we don't want our libel law to be quite as liberal about opinion as that of our American cousins, we ought to at least tweak our more limited opinion defence to also cover cases like this - where the factual basis for the opinion isn't indicated but rather is already widely known due to the claimant being a public figure. But, unfortunately, no such defence currently exists in UK law.

Conclusions

My thoughts on all this, in summary:

  • Brendan O'Neill's article in Spiked is bad. It misleads, and sometimes states outright untruths, about what the judgment said.
  • Inferring that an adversarial exchange with a high-profile account on Twitter caused someone reputational harm because it triggered an influx of abuse on Twitter seems completely unreasonable to me, yet the judgment against Fox seemed to rely on such an inference.
  • The rules protecting expression of opinion should be more robust. If well-known facts about a public figure provide an obvious, salient basis for some negative opinion about them, it should simply be legal to voice that opinion - even without spelling out your reasoning. Right now, this is not necessarily so.

Even though the culture war is a societal cancer, reporting on cases like this ought to be an opportunity to leverage it for good; they are a good opportunity for journalists to educate the public about how our laws work, and for activists to argue for improvements to them. Alas, nobody in a position to put such an analysis before a mass audience seems to have seized the opportunity.

  1. That safe spaces announcement, read plainly, seemed to state that Sainsbury's had introduced blacks-only areas or events in their physical, real-life workplaces, and lots of angry Twitter users besides Fox condemned Sainsbury's on this basis. Sainsbury's later disavowed this interpretation, though, and said the "safe spaces" were actually online support groups for employees to discuss their experiences of racism. I don't think they ever clarified whether those online spaces were for blacks only. Anti-woke blogger Stephen Knight has a good writeup that includes a screenshot of the announcement, which Sainsbury's has since deleted. ↩︎

  2. This claim is accompanied by a link to https://www.bbc.co.uk/news/entertainment-arts-68132377, which I looked at to see if it somehow corroborated the claim in Spiked, but it doesn't; the closest it gets to being relevant to the claim it's cited in support of in Spiked is when it notes that the judge said that Fox "did not attempt to show the court that these allegations were true". There's no mention of the judge criticising him for this. ↩︎