The Laurence Fox ‘twibel’ case — timeline and legal framework explained
Judgment has been handed down in the high-profile libel battle involving actor-turned-politician Laurence Fox (Blake and Seymour v Fox [2024] EWHC 146 (KB)) after he labelled others as ‘paedophiles’ on social media.
Here, Solicitor and media litigator Adam Murphy provides an overview of the timeline of events, legal framework and contentious aspects of the judgment, with analysis on the wider implications for online defamation.
Heated social media exchanges
The Honourable Mrs Justice Collins Rice found in favour of the claimants — Mr Blake and Mr Seymour. In her judgment — handed down on 29 January 2024 — Mr Fox’s counterclaims were also dismissed.
In October 2020, Sainsbury’s supermarket posted on Twitter (now X) in celebration of Black History month. Mr Fox then posted and called for a boycott of Sainsbury’s over an employee diversity and inclusion policy. The ensuing exchanges between Mr Fox and several other individuals resulted in defamation proceedings.
Three individuals responded to Mr Fox’s comments, including former Stonewall trustee Mr Simon Blake, drag artist ‘Crystal’ (real name Colin Seymour) and actor and broadcaster Nicola Thorp. Each responded by calling Mr Fox a racist. He, in turn, responded by calling each of them a paedophile.
Consequently, Mr Fox was sued by the three individuals for defamation. He then counterclaimed in defamation for having been labelled as a “racist” by each of them.
Timeline of events
1 October 2020
15:22
Sainsbury’s posted a tweet containing an image of a statement which read:
“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.”
4 October 2020
10:45
Mr Fox posted in response to the tweet, commenting that it promoted racial segregation and discrimination and inviting others to boycott the supermarket.
“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
[…]”
16:28
Ms Thorp tweeted:
“Which part of this do you actually have a problem with?”
16:45
Ms Thorp followed up with:
“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. And they should probably re-read their own statements of ‘solidarity’ with the black community.”
17:11
Mr Blake quote-tweeted Mr Fox’s tweet with the words:
“What a mess. What a racist twat.”
17:19
Mr Seymour — under his drag-name 'Crystal’ — quote-tweeted Mr Fox’s tweet, commenting:
“Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.”
17:29
Mr Fox quote-tweeted Mr Blake’s tweet, responding:
“Pretty rich coming from a paedophile.”
17:30
Mr Fox quote-tweeted Crystal (Mr Seymour)’s tweet, stating:
“Says the paedophile.”
17:51
Mr Fox responded to Ms Thorp’s tweet, mirroring the wording used in her initial response:
“Any company giving future employment to Nicola Thorpe or providing her with a platform does so in the complete knowledge that she is unequivocally, publicly and undeniably a paedophile”.
17:51 - 18:48
The following exchange took place between Ms Thorp and Mr Fox:
“NT: I thought you wanted a reasoned debate? Happy to continue.
LF: I do. Just providing context to our chat.
NT: OK cool, I understand. Can you answer my question then?
LF: Creating segregated work spaces is inherently racist. Your turn.
NT: But they weren’t creating segregated work spaces. They created a safe space for Black employees to be able to talk about trauma resulting from events surrounding BLM. That was separate to the working environment and there if they wanted to use it.
NT: @LozzaFox … you still there?
LF: You’re making my point for me.
NT: What’s wrong with safe spaces for people who are affected by an issue? Presumably you’d be ok with a safe space for male divorcees struggling with custody laws? Or safe spaces for women who have been assaulted? Or victims of paedophilia?
NT: And I’m aware that an employer can’t provide safe spaces for all issues. But racism and the BLM movement were huge news events globally and in the UK and directly called employers to account on race issues.
NT: At any rate it looks like @LozzaFox has given up on our debate. Safe spaces aren’t segregation. Safe spaces aren’t even necessarily physical spaces. They can be WhatsApp groups. And they aren’t always strictly limited to one group, but rather people you are safe to talk with.”
18:07
Crystal (Mr Seymour) quote-tweeted Mr Fox’s response under the comment:
“Now adding homophobic, boring and lazy to your list of adjectives. What a sad little life Jane.”
18:24
Mr Fox posted the following tweet:
“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.”
19:11
Mr Blake quote-tweeted Mr Fox’s response requesting that he remove the tweet “please would you remove this tweet as you know it to be untrue. Thanks”.
5 October 2020
09:30 (approx.)
Mr Fox deleted his three original ‘paedophile’ tweets. However, these exchanges gained significant traction on social media. For that period, they were the subject of daily national press — described in Mrs Justice Collins Rice’s judgment as “inherently eye-catching, not to say startling nature”. The judgment went on to say that Mr Fox — following his emergence as a politician — “had a megaphone and knew how to use one”.
1 April 2021
The claimants (originally including Ms Thorp) issued claims for defamation against Mr Fox. Mr Fox issued counterclaims pleading that the three responses which alleged he was ‘racist’ were defamatory.
Legal Framework
For a defamation claim to succeed, the following elements must be present:
1. Defamatory statement.
2. Publication to a third party.
3. Reference to claimant (or can be identified).
4. Causes (or is likely to cause) serious harm.
While it was common ground between the parties that some of these elements were present (both ways), the ‘meaning’ of the words complained of in a defamation claim is usually determined by the judge at a preliminary issue hearing.
Historically, these hearings took place after the close of statements of case but are increasingly being listed before the filing of a defence.
Preliminary issues
The ‘preliminary issues’ in these proceedings were determined and set out in the judgments of a specialist defamation Judge — Mr Justice Nicklin — and subsequently (following an appeal by Mr Fox, which was expedited given the trial listing) the Court of Appeal.
Ultimately, the Court of Appeal dismissed an appeal against the meaning judgment in respect of five of the six tweets. It upheld that the meaning of the statement could be decided without defining the individual term ‘racist’.
Interesting points from the preliminary issues on meaning were as follows:
1. The claimants’ claims
While there is no statutory definition for what constitutes a defamatory statement, at common law it’s a statement that would “substantially affect in an adverse manner the attitude of other people towards a claimant, or have a tendency to do so”.
The single natural and ordinary meaning of Mr Fox’s ‘paedophile’ tweets 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”. The court determined that this imputation carried a defamatory tendency and therefore satisfied the test.
There is no requirement for claimants to establish that the defendant held an intention to defame. Accordingly, Mr Fox’s ‘intention’ behind his comments was irrelevant for the purposes of determining meaning at the preliminary issues hearing.
While the imputation itself was defamatory, a significant distinction was noted between the claims in relation to Mr Blake and Mr Seymour and the claim involving Ms Thorp. Mr Fox argued that his tweets weren’t intended to be taken seriously. Rather, they were ‘rhetorical flourishes’ to express his strong objection to being labelled a racist and an attempt to illustrate that the original remarks were similarly baseless.
Mr Fox ‘quote-tweeted’ his responses to each of Mr Blake, Mr Seymour and Ms Thorp. However, the difference was that while the tweets against Mr Blake and Mr Seymour were short shrift remarks, when responding to Ms Thorp, Mr Fox reproduced her original tweet (save that he substituted the word ‘racist’ for ‘paedophile’).
Mr Fox’s submissions as to his rhetorical device were rejected in relation to Mr Blake and Mr Seymour — given the brevity of those posts — but were ultimately accepted in respect of Ms Thorp’s claim. The element of mimicry provided the necessary context on which Mr Fox’s opinion was formed to the hypothetical ordinary reader and accordingly, it was determined not to have any defamatory tendency. Ms Thorp’s claim in libel was therefore dismissed.
2. Mr Fox’s counterclaims
Mr Justice Nicklin (and subsequently the Court of Appeal, in its judgment) held that the single natural and ordinary meaning of Mr Blake, Mr Seymour and Ms Thorp’s ‘racist’ tweets was an expression of opinion — and that the comments weren’t confined to Mr Fox’s original tweet but formed part of a broader claim that he was, in general, a racist.
The term ‘racist’ wasn’t defined at the preliminary issues hearing, with Nicklin J providing judicial comment that the term was a word that almost always signifies a statement of opinion. The Court of Appeal determined that the first instance decision not to define the term a definition for the term ‘racist’ was entirely reasonable.
Mr Fox has been critical of the courts' reluctance to define the word ‘racist’ and points out the inconsistency in the approach, in circumstances where the court provided the ordinary meaning of the term ‘paedophile’.
Again, a distinction was noted in respect of Ms Thorp’s tweet. Mr Blake and Mr Seymour had ‘quote-tweeted’ Mr Fox’s original tweet, which in-turn provided the necessary context on which those opinions were founded. By contrast, Ms Thorp’s post emerged from a new tweet (and therefore a new thread) which omitted the important context on which her opinion was formed. It was determined that she “did not indicate whether in general or specific terms the basis of her opinion”.
Mr Fox succeeded in appealing this aspect of the first instance judgement and his claim against Ms Thorp survived to trial.
Serious Harm
Section 1(1) of the Defamation Act 2013 provides that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. This is highly fact-sensitive and must be clearly established by evidence.
The courts would apply the test set out in the leading authority Lachaux v Independent Print Ltd [2020] AC 612 and consider factors such as the meaning of the words, the situation of the claimant, the circumstances or extent of the publication and any inherent probabilities in the case.
Defences pleaded at trial
The eight-day trial of the matter took place in the Royal Courts of Justice on 22 November 2023.
Each of the parties pleaded that no ‘serious harm’ could be attributed to their own tweet(s), but each also pleaded a specific defence in the alternative.
Mr Blake and Mr Seymour
At trial, Mr Blake and Mr Seymour pleaded the statutory defence of ‘honest opinion’ as contained in Section 3 Defamation Act 2013 (the Act), which states as follows:
3.- Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
[…]
That defence was potentially available to Mr Blake and Mr Seymour. The conditions for them to establish at trial were those in subsections (3) and (4). Mr Fox was required to establish subsection (5) to defeat the defence.
Ms Thorp
Ms Thorp could not rely on this defence due to the aforementioned distinction in the composition of her tweet. By posting a ‘standalone’ tweet (as opposed to ‘quote-tweeting’ Mr Fox’s original tweet), she omitted the context of her allegations. This meant that subsection (3) wasn’t satisfied.
Ms Thorp instead relied on the defence of ‘truth’ under section 2 of the Act. This has a much higher threshold to surmount and required her to establish that her comments about Mr Fox being racist were objectively and substantially true.
Mr Fox
Mr Fox didn’t rely on any of the statutory defences to justify his allegations — nor did he seek to maintain that the statements were ‘substantially true’. Instead, he relied on his tweets attracting ‘qualified privilege’ at common law. The purpose of this defence is to facilitate the ability of an individual to publish information which should be freely known and is in the public interest but affords protection from a successful claim for defamation where the statement is untrue. It can be defeated where the other party can establish ‘malice’.
Mr Fox relied on this defence at common law, specifically on the basis that his tweets were in ‘reply to attack’ — a defence which required him to establish that he was the victim of an attack on his legitimate interests — and for which his response must be proportionate (mere retaliation isn’t protected).
Judgment
Judgment was handed down on 29 January 2024, following the November trial.
Mr Fox’s ‘paedophile’ tweets were determined on the facts to be “seriously harmful, defamatory and baseless”. His comments were determined to connote a tendency to cause serious harm to the claimants’ reputation. Mr Fox himself described the allegation at the time as the “most cruel” thing he could think of.
In her judgment, Mrs Justice Collins Rice declined to provide a judicial definition of the term “racist” — preferring instead to confine her judgment to address the application of the serious harm test and whether or not the opinion held was defamatory.
She commented that while there is “no doubt identifiable irreducible core meaning of that term [racist]”, there is also a “wide penumbra of meaning which must be acknowledged to be genuinely debatable” and with regards to definitions, that courts must be “properly circumspect about wading unnecessarily into such territory”. The reluctance of the Court to provide a definition of the term ‘racist’ is a continuing complaint of Mr Fox, where the Court did provide a definition of the term ‘paedophile’.
The imputations of Mr Blake, Mr Seymour and Ms Thorp weren’t considered to be defamatory because — while the comments themselves were inherently defamatory — Mr Fox failed to discharge his burden in establishing that the three tweets complained of caused (or were likely to cause) serious harm to his reputation. That is, the Judge determined that in the context of Mr Fox’s controversial reputation on the topic, he couldn’t establish that these particular tweets made any difference to his reputation or meant that he had suffered serious harm.
Mr Fox’s claims were dismissed accordingly. The effect of this is that Mr Blake, Mr Seymour and Ms Thorp weren’t put to any further defence on those opinions and weren’t required to establish that Mr Fox actually was ‘racist’.
Mrs Justice Collins Rice dismissed Mr Fox’s defence of ‘qualified privilege’ as “hopeless on the undisputed facts”. This was unsurprising, as it’s difficult to see how calling his opponents “paedophiles” was a reasonable or proportionate response to their allegations of racism.
In summary, Mr Blake and Mr Seymour succeeded on their claims and Mr Fox’s counterclaims were dismissed.
Context is key
An interesting theme throughout the various judgments (i.e. the first instance preliminary issues judgment, the Court of Appeal judgment and the trial judgment) is one of ‘context’ — in particular, the role of the ‘hypothetical ordinary reasonable reader’.
While the judgments each reiterate well-established principles in defamation law, there is a discernible attention to detail (no doubt prompted by Mr Fox’s appeal) in analysing and contrasting the various exchanges between Messrs Blake and Seymour as against those of Ms Thorp.
In the former, the claimants’ initial comments were provided via ‘quote-tweet’ and Mr Fox’s responses were categorised as “short and pithy” tweets forming “straightforward assertions”.
In the latter, Ms Thorp posted a standalone tweet (as opposed to a ‘quote-tweet’) which set her case apart. While seemingly a minor detail, this subtle nuance formed the basis on which Mr Fox’s counterclaim against her survived to trial — and ultimately would have precluded her from relying on the section 3(3) defence of honest opinion (had Mr Fox discharged his burden on serious harm). By further contrast, despite containing the same imputation (i.e., that Ms Thorp was a paedophile), Mr Fox’s response contained context in its mimicry and accordingly was determined not to have any defamatory tendency — the effect of which was that Ms Thorp’s claim was dismissed.
This granular analysis appears to set a fairly high standard when applying the relevant legal tests and consideration of the hypothetical ordinary reasonable reader (in both attention and comprehension) — particularly in the context of social media designed for rapid consumption. Mrs Justice Collins Rice herself acknowledges the fast-paced nature of social media, referencing (for example) that twitter content can be “swiftly read and as swiftly buried in the constant avalanche of new comment”.
X is a social media platform that encourages individual expression. While polarised debate is an inevitable byproduct, it would be interesting to see how this application might differ if the offending material was published as video, photo or meme. Moreover, given the number of users on social media, one ‘swipe-down refresh’ of a feed can result in hundreds of new posts, photos or videos. So, to what extent can (or should) the hypothetical ordinary reasonable reader be expected to diligently investigate context?
The judiciary will of course maintain a stance that each case turns on its individual factual matrix — but going forward, the extent to which the courts will dissect the minute characteristics of social media exchanges in the level of detail seen in Fox remains to be seen.
What next?
Mr Fox has been active on social media following the judgment and has indicated that he may appeal the decision.
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