Establishing serious harm - Blake & Anor v Fox [2024]

In Blake & Anor v Fox [2024] EWHC 146 (KB), the High Court provided further clarification on when the threshold test for establishing serious harm under s1(1) of the Defamation Act 2013 is met.

Considering whether allegations of “paedophilia” and “racism” made on the social media platform X (formerly Twitter) met the serious harm test, Mrs Justice Collins Rice emphasised the importance of the factual circumstances, the extent of publication and the real-world reputational impact in determining whether an individual suffered serious harm as a result of the statement.

Background

The high-profile libel case arose out of a series of heated exchanges on social media between four individuals; Mr Laurence Fox, actor and political activist and leader of the Reclaim party; Mr Simon Blake, former trustee of Stonewall, a LGBTQ+ charitable organisation; Colin Seymour, also known as the drag artist “Crystal”; and Nicola Thorp, actress, TV presenter and broadcaster.

The dispute arose in October 2020, in relation to Mr Fox’s comments on X (formerly Twitter). Mr Blake, Mr Seymour and Ms Thorp each responded to Mr Fox’s comments describing him as a “racist”. Mr Fox, in turn, responded (through quoting their statements) by calling each of them a “paedophile”. Mr Blake, Mr Seymour and Mr Thorp subsequently brought claims against Mr Fox in libel, with Mr Fox bringing a reciprocal counterclaim for the allegations of racism.

Determination of meaning

At a “preliminary issues” hearing (Blake & Ors v Fox [2022] EWHC 3542 (KB)), Mr Justice Nicklin determined that the natural and ordinary meaning of Mr Fox’s tweets was that “each of these Claimants was a paedophile, someone who had a sexual interest in children…”. The Judge held that this was an allegation of fact and was of defamatory tendency. Mr Justice Nicklin determined that Mr Blake, Mr Seymour and Ms Thorp’s tweets that Mr Fox was racist were expressions of opinions, but were also of defamatory tendency, finding that “the single natural and ordinary meaning of each of these Tweets is that [Mr Fox] was a racist”.

The Court of Appeal upheld Nicklin J’s decision on meaning, except in relation to Ms Thorp, finding that Mr Fox had used the word “paedophile” “rhetorically as a way of expressing his strong objection to being called a racist” by her and that as such, Mr Fox’s tweets to Ms Thorp were not defamatory. Her claim was dismissed on this basis. However, Ms Thorp remained a party to the case as she was a defendant to Mr Fox’s counterclaim (having also stated her belief that Mr Fox was a racist).

Serious harm and defences

Having determined that certain of the statements were of defamatory tendency, the Court was then required to consider whether the publication of the statements caused, or was likely to cause, serious harm to the reputation of the parties (section 1(1) of the Defamation Act 2013) and whether a defamation defence applied.

Relying on the threshold test set out in Lachaux v Independent Print Ltd [2020] AC 612, Collins Rice J emphasised that the issue of serious harm was a question of fact to be established on a case-by-case basis. In this regard, the Court recognised that this required consideration of (a) the meaning of the words; (b) the situation of the claimant; (c) the circumstances surrounding publication and (d) the inherent probabilities. She emphasised that she was “assessing real world reputational impact” and needed to “take a contextualised and balanced approach to both evidence and probability, weighing in the balance any factors tending either to amplify or to limit that impact”.

Claimants’ case

Collins Rice J concluded that Mr Fox’s tweets calling Mr Blake and Mr Seymour “paedophiles” satisfied the “serious harm” test; in that the tweets had caused, or were likely to cause, serious harm to Mr Blake and Mr Seymour’s reputations. This decision was based on the following factors:

1. allegations of paedophilia were inherently grave and serious;
2. Mr Fox had a very large following on X (formerly Twitter) and as a well-known actor and emerging politician, the tweets reached a large audience;
3. the tweets were reposted numerous times on social media despite being deleted within one day;
4. both claimants had a public profile as gay men and as gay rights activists and also worked closely with children (sometimes vulnerable children);
5. coincidentally, each claimant shared his name with a convicted paedophile;
6. the reputation of the Claimants was spotless; and
7. the evidence reported significant homophobic abuse on social media following the publication of Mr Fox’s tweets.

Mr Fox raised a qualified privilege defence. This permits a claimant to “reply to an attack” in circumstances where their legitimate interests have been attacked, on the presumption that their response is: (a) warranted; (b) proportionate to the “attack”; and (c) does not include irrelevant statements. Collins Rice J emphasised that the defence does not permit “mere retaliation” and described Mr Fox’s defence as “hopeless on the undisputed facts”. Collins Rice J determined that Mr Fox’s replies had no apparent connection with the Claimants’ tweets, were random and irrelevant and were in reality just mere retaliation.

The Claimants therefore successfully established that they were defamed by Mr Fox’s tweets and their claim succeeded. Collins Rice J awarded each of Mr Blake and Mr Seymour £90,000 in damages. An injunction was also granted, which prevented Mr Fox from repeating the allegations made against Mr Blake and Mr Seymour (or from making similar allegations).

Mr Fox’s case

In regard to Mr Fox’s counterclaim (on the basis of Mr Seymour’s, Ms Thorp’s and Mr Blake’s tweets calling Mr Fox a racist), Mr Fox argued that the tweets had destroyed his acting career, on the basis that they were the trigger for his agent severing ties with him, and that this met the threshold for serious harm.

Collins Rice J agreed that the allegations were grave, and that they were published on a large scale. However, it was also noted that (i) Mr Fox’s own replies had caused the mass republication; and (ii) when considering Mr Fox’s pre-existing reputation on the topic of racism, he was unable to demonstrate a causal link between the specific tweets and their effect on his reputation, particularly in light of his previous controversial posts about racism and his various public appearances and debates on the subject. Mr Fox’s agent had referenced such matters in her decision to end their working relationship.

Collins Rice J determined that, while the tweets were defamatory in meaning, they had not caused, or were not likely to cause, serious harm to the reputation of Mr Fox. Mr Fox’s counterclaim therefore failed, and the Court was not required to consider the defences put forward by Mr Seymour, Ms Thorp and Mr Blake.

Comment

This decision sheds some light on the application of the “serious harm” test under the Defamation Act 2013, and the factors that the Court may take into account in assessing harm.

It also highlights how issues of causation may present a hurdle to establishing serious harm (even if a publication is defamatory in meaning). Collins Rice J placed significant weight on Mr Fox’s pre-existing reputation and behaviour in determining whether the serious harm threshold had been met.

This arguably sits in conflict with the Court of Appeal’s approach in Banks v Cadwalladr [2023] EWCA Civ 219, and its concerns about relying on pre-existing bad character. It will be interesting to see how the courts deal with causation going forwards and the extent to which a party’s prior conduct plays into the assessment of serious harm.

Co-authored by Lucy Jessop, Associate at CMS.