What does it mean? Preliminary issue judgment in Paisley v Linehan defamation case

On 1 August 2024 judgment was handed down in the preliminary issue trial of Paisley v Linehan [2024] EWHC 1976 (KB).  As is the norm in defamation cases the court has determined issues of meaning in advance of a full trial of this claim.

The case provides an interesting example of the court’s approach to determining meaning.  It serves as an important reminder for those publishing blogs online that they may be responsible for comments made by other users in response to their posts, but that claimants need to ensure they are specific and proportionate in bringing any such claim.

Background

The claimant describes himself as a former actor who campaigns for women’s rights and against domestic violence. The defendant is a television writer who describes his beliefs as “gender-critical”, meaning that he believes that a person’s sex is immutable and that philosophies prioritising a person’s self-declared gender over their sex can undermine the protection of vulnerable women.

In 2020 the defendant created an account on the online newsletter platform Substack, the main purpose of which he says was to publish articles around gender ideology and women’s rights. The Substack articles were made available by email to subscribers and online to any members of the public. Members of the public were able to post comments on an article and reply to other existing comments.

The claimant, Mr Paisley, brought a claim for libel and other torts in respect of 7 publications on Substack, consisting of articles by the defendant, readers’ comments or a combination of both (the “Publications”).

Issues

As is routine in libel cases this preliminary trial dealt with the following three issues.

1.      What meaning(s) each of the statements complained of bears

In defamation cases it is necessary to determine the “single, natural and ordinary meaning of the statements complained of”. To do so the judge applied the well-established principles re-stated by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB) at [12]. These principles include: (i) the governing principle of reasonableness; (ii) the intention of the publisher is irrelevant; (iii) over-elaborate analysis should be avoided; and (iv) the publication must be read as a whole.

In order to determine the meaning, the statement(s) complained of must be clearly identified, and the publication (the set of words and images within which the statement sits) must be clearly identified. The judge laboured these points because clarity on these matters is particularly important in online cases, where articles are prone to be altered and comments may be added and deleted as time goes by. The judge considered it will often be disproportionate to sue on a later-amended version of the article or below-the-line comments that may have very little readership. If there is good reason to sue in respect of amendments it is for the claimant to identify what the changes were and when they were made and in respect of comments it is for the claimant to specify at what point in time the court is being asked to assess and the state of the thread at that time.

2.      Whether each statement is defamatory of the claimant at common law

A statement is defamatory if it “would tend to lower the claimant in the estimation of right-thinking people generally” or if it would tend to have a substantially adverse impact on the way people would treat the claimant.

3.      Whether or to what extent each statement is one of fact and/or opinion

The approach to distinguishing opinion from factual allegations includes that: (i) the statement must be recognisable as comment, as opposed to an imputation of fact; (ii) opinion is something which is or can reasonably be inferred to be a deduction or conclusion; and (iii) the ultimate question is how the word would strike the ordinary reasonable reader.  The subject matter and context may be a key indicator of whether the words are fact or opinion.

Judgment

The judge stated that his initial impression of the articles was that the defendant was criticising the claimant for the way he deals with people who express opinions in the trans rights debate contrary to his views, particularly women who adopt a gender-critical stance. However, some of the comments struck the judge as going further and making allegations of paedophilia at some level.

At paragraph 102 the judgment sets out that all the Publications complained of were defamatory at common law and the meanings they bore. We set them out here for the purposes of seeing the line the Judge drew between statements of fact (normal text) and expressions of opinion (underlined text):

• Publication 1: The claimant has an unhealthy interest in small children and there is a real possibility that he may be a paedophile.
• Publication 2: The claimant has targeted a lesbian woman by making a complaint to the police that appears to be vexatious, and this is the latest step in his campaign of misogynistic and homophobic harassment, in the course of which he has lied.
• Publication 3: The claimant has engaged in a campaign of bullying and harassment aimed at silencing women who disagree with him, including by making spurious and vexatious complaints to the police.
• Publication 4 (article only): The claimant bullied Ceri Black into removing an allegation from a Twitter thread that he was spreading an anti-safeguarding line even though that was an apt description of what he does because he seeks to normalise adult nudity in the presence of children. This bullying behaviour is evidence that the claimant is a dangerous narcissist and misogynist and a vexatious troll who deserves to be charged with wasting police time.
• Publication 5: The claimant is a serial harasser of women who has made vexatious legal complaints.
• Publication 6: The claimant is an extreme misogynist who is continuing to harass women by making vexatious complaints to the police.
• Publication 7: The claimant has harassed and terrified Marion Millar by making a meritless complaint to the police and is now engaging in the same conduct in relation to Ceri Black.  He is an aggressive, sadistic, misogynistic bully.

Looking at two of the Publications in further detail in relation to meaning and honest opinion:

Publication 1

Publication 1 is a set of comments on 13 December 2020 in response to an article from the defendant on the same date. No complaint is made of the article which is described by the court as a “sort of derisive round up of the recent activities of trans rights activists”.  

There is a heading “David Paisley, leave LGB people alone” with a picture of the claimant and a screenshot of tweets by someone noting that the claimant had referred to a LGB organisation as “widely viewed as a hate group”. In the comments section a number of statements are made including (amongst others): “Paisley is a possible paedophile. He blocked me months back for pointing out his unhealthy interest in small children…” and “He has an unhealthy interest[ed].  He has posted some pretty dodge stuff months back…”.

The claimant’s case was that the comments meant that the: “claimant is a paedophile” or “a paedophile sympathiser” or there are reasonable grounds to suspect either of these.  The defendant did not set out an alternative meaning but stated that the comments were just idle gossip that no reasonable reader would take seriously.

Determining that the claimant’s meaning was too high the judge held that the statement complained of had the meaning that the “claimant has an unhealthy interest in small children and there is a real possibility that he may be a paedophile”. That is an expression of opinion and defamatory at common law and the judge considered that the reasonable reader would consider such statements as such.  The user had seen some of the claimant’s comments online, assessed those as presenting, in her opinion, an unhealthy interest in children, and then reached the view that this gave rise to a possibility that the claimant could actually be a paedophile. This is all without claiming to know of any actual conduct by the claimant and when read in the context of the exchange as a whole. Whilst it might be surprising that a statement of possible paedophilia is held to be an expression of opinion this underlines that a particular word does not fall into a specific category and that context is everything.

Publication 5

Publication 5 is an article on the defendant’s Substack on 27 October 2021 under the headline “Day 2 of blue ticks covering up a sex scandal”.   

The statement complained of is in the middle of the article and states:

“David Paisley

Serial harasser of women.  Must be very nervous that his vexatious legal complaints are about to come under national scrutiny.”

There is then a screenshot of a Tweet by the claimant regarding a BBC article.

The claimant’s contended meaning was that: “The claimant is guilty of persistent and repeated harassment of women. He makes malicious police complaints” and that this was a statement of fact and defamatory at common law. In contrast, the defendant’s asserted meaning was that: “the claimant had made a number of vexatious legal complaints about women and was now encouraging his followers to complain to the BBC on the basis that he disagreed with the contents of an article. The claimant is somebody who harasses women, including by making vexatious complaints against them”. The defendant accepted that this statement was defamatory but argued that only a reader “avid for scandal” would understand the complaints to be malicious rather than merely vexatious, and that the underlined words were expressions of opinion.

The judge held the statement read in context was straightforward and meant: “The claimant is a serial harasser of women who has made vexatious legal complaints”. It was also entirely factual and would strike a reasonable reader as being a statement of historical fact, rather than the defendant’s subjective views.

As regards comments on the Publications, by way of example, on Publication 4 the judge held that he was unable to make a fair determination of meaning in respect of any of the 14 comments complained of since he did not have the benefit of a clearly agreed position as to what a reasonable reader would have seen. The meaning of comments would have changed depending on what was visible to a reader at a specific time and their particular display options. If the claimant wished to have the meaning of these comments determined he would have to set out his case for each individual comment or group of comments to be considered together and, if the latter, he would need to present a case that all reasonable readers will have read those comments together and explain the point in time he is asking for that to be assessed.

Comment

This case is still at an early stage and the court will still have to determine further issues such as serious harm and the application of any defences. It is nonetheless a helpful enunciation of the principles underpinning how a court will assess issues of meaning. Of particular interest was the judge’s consideration that in order to determine meaning in respect of grouped user comments a claimant will have to present a case that all reasonable readers will have read these together and explain the point(s) in time that should be assessed so that the court can form a view as to whether at that time all the comments in that group would have been available to a reasonable reader and what might be considered as external context at the time. 

The judgment also emphasises the importance of the context of an exchange when determining whether a statement was one of fact or opinion. Even statements which might on their face be seen as factual could be determined to be opinion based on their context.

The judgment is available in full here.