The three Claimants in this claim have brought a claim for libel against the Defendant. By a counterclaim, the Defendant has brought a claim for libel against the three Claimants.

The claim and the counterclaims all relate to postings on Twitter. The relevant Tweets, and the circumstances in which they came to be published, are set out in the judgment I gave refusing the Defendant’s application for trial by jury (“the Mode of Trial Judgment”): [2022] 4 WLR 77 [5]-[10].

The Claim Form was issued on 1 April 2021. The Claimants allege that the Defendant’s Tweets on 4 October 2020 libelled them, and they claimed remedies including damages and an injunction. Particulars of Claim, dated 6 April 2021, set out the detail of the Claimants’ claims. The Claimants contended that each of the Defendant’s Tweets bore the natural and ordinary meaning that each Claimant:

On 21 May 2021, the Defendant filed a Defence and Counterclaim. In his Defence, the Defendant did not dispute the fact of publication of his Tweets on 4 October 2020 or that the words of each Tweet had referred to the relevant Claimant. He did dispute the natural and ordinary meaning of the Tweets and, in particular, whether they were defamatory of the Claimants.

He contended that an ordinary reasonable reader would have understood that the Defendant’s words were “tit-for-tat vulgar abuse” which did not bear a literal meaning that the Claimants were paedophiles and the Defendant: “was giving the Claimants a taste of their own medicine”. As such he contended that his Tweets were not defamatory of any of the Claimants.

As to the natural and ordinary meaning, he contended:

The Defendant contended that the publication of each Tweet had not caused, nor was each likely to cause, serious harm to the reputation of the Claimants or any of them, relying principally on the clarification he had published within an hour of the publication of the original Tweets and the deletion of his Tweets the following morning.

In paragraph 35 of his Defence, the Defendant advanced his case on meaning of the Tweets:

The Defendant relied upon a substantive defence of reply-to-attack qualified privilege on the grounds that each Claimant had posted a Tweet calling him a racist; and made clear that he was not alleging against any of the Claimants that s/he was a paedophile.

By his counterclaim, the Defendant brought a claim for libel against each Claimant arising from each Claimant’s Tweet published on 4 October 2020. He alleged that each of the Claimant’s Tweets was defamatory of him and that the meaning(s) of the relevant Tweets were as pleaded as follows:

In a separate paragraph the Defendant added by way of clarification:

After the Defendant’s application for trial by jury was dismissed, I made directions for the trial of various preliminary issues on 26 May 2022. The order provided:

There was a short argument, at the hearing on 26 May 2022, as to whether the Court should give directions regarding disclosure and possible expert evidence to resolve the preliminary issues. The Defendant wished to admit evidence as to the way in which the relevant Tweets would have appeared to various categories of readers and contended that this evidence was admissible as “context” to the relevant publication. I gave a short judgment on that occasion: [2022] EWHC 2726 (QB). I declined to give directions for disclosure and evidence. I said:

There remained a small dispute between the parties as to the extent to which hyperlinks to the original Sainsbury’s announcement that were contained in some of the Tweets are admissible as context. On analysis, neither side contended that the Sainsbury’s announcement had any material impact on the issues I have to decide save, potentially, in relation to the issues of the decision as to fact and opinion.

As the Defendant has filed a Defence to the Claimants’ claim, his position on the preliminary issues is set out above. The Claimants have not yet filed a Defence to the Defendant’s Counterclaim. As a result, as part of the directions given in the order of 26 May 2022, the Claimants were required to set out their case on the preliminary issues.

On 30 June 2022, in compliance with that order, the Claimants filed their statement of case on the preliminary issues. The Claimants’ position on the preliminary issues is as follows:

Given the substantive defence that has been advanced by the Defendant, it is perhaps necessary to explain why the Court has directed the resolution of some of the preliminary issues arising from the Claimants’ claim.

The natural and ordinary meaning of a publication, if found to be defamatory at common law, is important not only for the parameters of any defence of truth but also in the assessment of damages on the assumption that the Claimant is able to establish serious harm to reputation under s.1 Defamation Act 2013. Here, the Defendant does not intend to advance a defence of truth in respect of his Tweets about the Claimants. Expressly, he has made clear that he does not allege that the Claimants are, in fact, paedophiles. He also does not advance the defence of honest opinion. So why should the Court resolve the question of whether the Defendant’s Tweets make an allegation of fact or an expression of an opinion? The answer to that is that the decision has a potential bearing, as I have said, on the issues of serious harm to reputation under s.1 Defamation Act 2013 and, if that point is reached, also as to damages. If the hypothetical ordinary reasonable reader considered that the Defendant’s Tweets simply expressed his opinion that the Claimants were paedophiles, then the objective finding could be relevant to those issues. That explains why the Court has directed the resolution of issue (g) in respect of the counterclaim, even though the Defendant is not intending to rely upon defences of either truth or honest opinion.

The Claimants contend that their Tweets about the Defendant were an expression of opinion. One of the elements that must be established for that defence under s.3 Defamation Act 2013 is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion: s.3(3). The question whether the relevant Tweet indicated whether in general or specific terms the basis of the opinion is an objective one and an issue on which no evidence beyond the publication itself is admissible. It can therefore conveniently be resolved as a preliminary issue along with the other preliminary issues that are commonly now resolved in defamation claims. Ultimately, if one or more Claimants fails on this issue then the relevant Claimant would not be able to rely upon a defence of honest opinion as s/he would have failed to have established the necessary element of the defence under s.3(3) Defamation Act 2013.

The core principles are not in dispute between the parties. Inevitably, some of the principles have more application in this case and some of them deserve closer analysis and consideration of other authorities.

The approach to assessing the single natural and ordinary meaning is set out in Koutsogiannis -v- The Random House Group Limited [2020] 4 WLR 25 [11]-[16] as approved by the Court of Appeal in Corbyn -v- Millett [2021] EMLR 19 [8] and Riley -v- Murray [2023] EMLR 3 [11].

Ordinarily, on the determination of the objective single meaning, no evidence is admissible beyond the publication itself: Koutsogiannis [12(ii)] and [12(x)] and Riley -v- Murray [12].

The context in which the words appeared to the hypothetical ordinary reasonable reader or viewer is very important to the determination of the natural and ordinary meaning, as is the medium in which the words appeared. Stocker -v- Stocker [2020] AC 393 [39]-[46]. The nature of the medium of publication is relevant to the Koutsogiannis principles [12] (i), (iv), (v), (vi) and (ix). Commenting particularly upon social media platforms, Lord Reed noted, in Stocker [43]:

There is no dispute as to the applicable principles, they are set out in Warby LJ’s judgment in Corbyn -v- Millett [9].

The principles are set out in Koutsogiannis [16]-[17], approved by the Court of Appeal in Corbyn -v- Millett [12]. As the Court of Appeal noted in Corbyn [13]:

In Triplark Limited -v- Northwood Hall (Freehold) Limited [2019] EWHC 3494 (QB) [17], Warby J explained that the overall impression created by the publication is likely to be the best guide whether a ‘bare comment’ would be understood to be an allegation of fact or an expression of opinion:

The ultimate “question” or “determinant” will always be “how the statement would strike the ordinary reasonable reader”: Butt -v- The Secretary of State for the Home Department [2019] EMLR 23 [39]. The process is highly fact-sensitive and reference to earlier decisions are only ever likely to provide general assistance as to the broad principles to be applied: Corbyn [19]. The Court should not adopt “prescriptive rules” as to the decision as to whether the statement makes or contains allegations of fact or expressions of opinion. In Zarb-Cousin -v- Association of British Bookmakers [2018] EWHC 2240 (QB) [26], I said this:

The boundary between allegations of fact and expressions of opinion is notoriously difficult to draw. It is perhaps uncontroversial to state that a publisher is “not permitted to shelter behind the defence of fair comment when the defamatory sting is one of … fact”: Hamilton -v- Clifford [2004] EWHC 154 (QB) [60]. However, bright-line rules are likely to prove elusive, as it is well-recognised that deductions or inferences of fact may, depending on context and their overall presentation, nevertheless be found to be expressions of opinion: Butt [34]-[37].

Ms Rogers KC submitted that there are some words, and she gave examples of “fascist”, “antisemitic” and “racist”, that have, necessarily, an inherent evaluative quality which reflects the speaker’s value judgment. Such words are likely to strike the ordinary reader as being in the nature of an opinion. She referred to Warby J’s decision in Swan -v- Associated Newspapers Limited [2020] EWHC 1312 (QB) in which the Judge decided that an imputation that the Claimant had made “racist” comments was an expression of an opinion. He noted [57(1)]:

I accept Ms Rogers KC’s submission on this point. It has some importance to the issues that I have to decide. By contrast, some allegations do tend to suggest to ordinary readers that they are factual in nature. Typically, allegations of the commission of a criminal offence, for example rape, may be thought to be ones that are quintessentially factual in nature: Hamilton -v- Clifford.

Nevertheless, neither of these can be regarded as a strict rule. For example, if a person alleged that a government minister had “murdered” thousands of people because of his or her handling of the COVID pandemic, no-one could sensibly take that to be a literal accusation that the minister was guilty of the criminal offence of murder. By the same token, even the use of heavily value-laden judgment terms in a publication may not prevent a finding that the overall effect of a publication is to convey an allegation of fact: see Ware -v- Wimborne-Idrissi [2021] EWHC 2296 (QB) [77], where an allegation that the Claimant’s “journalistic record includes right-wing racist work” was found to be an allegation of fact.

Finally, the issue of context - and its proper limits - potentially raises its head again on this issue. I can take the law from Gatley on Libel and Slander (13th edition, Sweet & Maxwell, 2022) §13.10, under the heading “Context provided by the specific publication only” (with footnotes omitted):

The point about the hyperlinks in that section is that they are intrinsic to the publication. On the determination of meaning, the question is to decide whether the ordinary reasonable reader would have followed the links (or at least some of them) so that what is found in the link should be included in consideration of the overall meaning. The presence of hyperlinks may, depending upon the overall presentation of the publication, reinforce the impression that the person is expressing an opinion. The point being made in the passage from Gatley is that reliance cannot be placed on truly extrinsic material to establish that the publication was, or contained, an expression of opinion. That decision must be made based on the intrinsic material available in the publication including, potentially, hyperlinks included in the text.

Section 3 of the Defamation Act 2013 provides (so far as material):

There is little authority on the interpretation of the second condition of the honest opinion defence under s.3. That element of the defence - now embodied in s.3(3) – was formerly part of the common law defence of honest opinion before the defence was put on a statutory footing in the Defamation Act 2013: see Joseph -v- Spiller [2011] 1 AC 853 [3] and [105]. Joseph, in this respect, represented a liberalising of the defence which had previously required that the comment or opinion must explicitly or implicitly indicate at least in general terms the facts on which the comment was being made and, critically, that the reader or hearer should be in a position to judge for him or herself how far the comment was well-founded. That last element was removed from the common law defence of honest opinion by the Supreme Court in Joseph and the terms in which s.3(3) were enacted reflect that more generous approach.

In Riley -v- Murray, Warby LJ held [44]:

Ms Rogers KC submitted that when considering whether the basis of any opinion has been indicated in a statement in a Twitter case, the Court should not take too narrow an approach. She submits that the Court should have regard to the realities of that medium and the circumstances of the publication. She argues that the basis of the opinion may not be in the Tweet, but in the surrounding material, including matters of common knowledge. A Tweet, she submits, is unlikely to stand alone and is inherently likely to be referring, explicitly or otherwise, to other material available. Finally, she contends that it is important, given honest opinion’s important role in protecting freedom of expression, that the defence should not be applied too narrowly.

For the Defendant, Mr Callus submits that the assessment required under s.3(3) is objective, as stated in the Explanatory Notes of the Defamation Act 2013, at paragraph 23.

In my judgment, Ms Rogers KC’s submissions may be stretching the definition of the word “indicated” beyond what it can reasonably bear. There may be cases where an event that is being commented upon is of such massive significance that the Court can treat it as being a matter of common knowledge. In such cases the element of indication may be found to be supplied. It is a point that will assume importance in relation to the third Claimant’s Tweet and I will consider the arguments in the context of that below.

Faithful to the requirement not to engage in over-analysis, I do not intend to set out the full submissions I have received. Both sides have submitted comprehensive skeleton arguments and have amplified their submissions this morning. What I set out below is my attempt to capture the essence of their submissions.

The Claimants submit that the Defendant’s allegation is expressly that each of them was a ‘paedophile’. It is an allegation of fact, being an allegation of criminal conduct. There is nothing in the context of the publication that could lead to a different conclusion.

The Defendant submits that his Tweets would be understood to be “rhetorical comment by [the Defendant] to the effect that the allegation of racism that had been levelled against him was as baseless and abusive as an allegation that the person was a paedophile”. Each of the Tweets was clearly responsive to the relevant Claimant’s Tweet alleging that he was a racist. Mr Callus argued that the words in each of the Defendant’s Tweets could only operate as a meaningful or relevant response to the racism allegation if his Tweet meant in effect the opposite of its literal meaning. He argues that the Defendant would have been understood as suggesting that: “two can play at the game of making extremely serious allegations that have no factual basis”.

The Defendant accepts that, if the Court finds that the natural and ordinary meaning of his Tweet is as pleaded by the Claimants, then that is defamatory at common law and an allegation of fact. If, however, the Court finds the Tweets are nothing more than rhetorical comment, then they are not defamatory, and the issue of fact and opinion does not arise.

As to the Claimants’ Tweets alleging the Defendant was racist, the Defendant contends that this was an allegation of fact. A substantial dispute between the parties has been raging for some time as to what the term “racist” means in this context. If, as the Defendant urges, the Court finds that the allegation is a factual one – and not an expression of opinion – then he has advanced his case as to what he says the Court should say that word means, as set out in his counterclaim (see [11] above).

In support of the allegation that this was an allegation of fact rather than an expression of an opinion, the Defendant argues:

On the final issue – whether the Tweets indicated in general or specific terms the basis of the opinion –the Defendant contends that none of the Claimants’ Tweets indicated the basis for the allegation. The accusation of racism was bare assertion. The First and Second Claimants’ Tweets did refer to the Defendant’s prior Tweet calling for a boycott of Sainsbury’s, but that Tweet expressly condemned racial segregation and discrimination. It could not, therefore, be a basis for any allegation of racism.

The Claimants argue that each of their Tweets was and would have been understood to be an expression of opinion. It was inevitably a value judgment. The basis for the opinion was sufficiently indicated. In the First and Second Claimants’ Tweets, they included the Defendant’s Tweet about boycotting Sainsbury’s. As for the Third Claimant, although she did not include the Defendant’s Sainsbury’s Tweet, she contends that, where a Tweet refers to a person who engages in public debate, the reader will readily appreciate that the Tweet indicates that the basis of the opinion is to be found in what the person has said.

The meaning of the Defendant’s Tweets is that each of the 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. That, in my judgment, was an allegation of fact which the Defendant accepts is defamatory at common law.

I reject the Defendant’s argument that the hypothetical ordinary reasonable reader would have understood his Tweet to be making only a rhetorical comment about the baselessness of the Claimants’ allegations of racism against him. That is one meaning that some readers may have thought his Tweets meant. It is not the natural and ordinary meaning. It is an extrapolation from the primary and obvious meaning of the words. It can only be arrived at after some interpretation. In that respect I consider the principles to be clear. Such an interpretation would only emerge after some analysis. For many readers it is likely to be arrived at only if they had someone prompting them to consider whether the Tweet had a second theoretically or logically deducible meaning beyond its plain meaning. That is not the natural and ordinary meaning of the Tweet. The Defendant may have intended to convey this second meaning, but his intention is irrelevant to the objective single meaning of the Tweet.

I also reject the Defendant’s arguments that an allegation that someone is a paedophile is mere abuse. Neither party cited authorities on mere abuse. I have looked today at the passage in Gatley on mere abuse (§3-037) in which the authors say:

In my judgment, an allegation that a person is a paedophile does not qualify in the sense of being mere abuse as indicated in that passage. There was nothing in the Defendant’s Tweets to indicate the word was not to be given its clear meaning.

Turning to the Claimants’ original Tweets about the Defendant, in my judgment, the single, natural and ordinary meaning of each of these Tweets was that the Defendant was a racist. That was an expression of opinion, and obviously so. Accepting Ms Rogers KC’s submission on this point, there are some words that almost always signify that they represent the person’s opinion. “Racist” is quintessentially one of those words. It almost invites the question from someone who hears the allegation: “why do you say that?” It is very different from the allegation that somebody is a paedophile.

Mr Callus’ argument in respect of the Third Claimant’s Tweet is that it is an allegation of fact. He says that this conclusion is reinforced with the words: “unequivocally, publicly and undeniably a racist”. I disagree. The ordinary reasonable reader would, I am satisfied, understand these simply to be the third Claimant’s forceful expression of her opinion. These words are rhetoric. They do not convert the expression of an opinion that the Defendant is a racist into an allegation of fact. In respect of the First and Second Claimants’ Tweets, this conclusion is fortified by the presence of the Defendant’s Sainsbury’s Tweet which would appear to the ordinary reasonable reader to be the basis of a comment that the Defendant was a racist. In their respects, therefore, s.3(3) is satisfied. The basis of their opinion was indicated.

I reject the Defendant’s argument that his Sainsbury’s Tweet could not be a basis for the allegation of racism. That is not the issue under s.3(3). As I indicated in Riley -v- Murray, in a passage approved by the Court of Appeal in [44]: “The issue (at this stage) is not whether the factual premise is right but whether it was sufficiently indicated.” An allegation of racism is defamatory at common law applying the principles set out in [27] above.

A point raised by Ms Rogers KC was whether the First Claimant’s Tweet, because it used the words: “what a racist twat” was mere abuse because of the word “twat”. Calling someone simply “a twat” may well qualify as vulgar or mere abuse. Here, however, the use of the word “twat” does not remove the allegation of racism. The use of “twat” is simply emphatic. It therefore does not change the nature of the allegation or its capacity to bear a defamatory sting.

The position of the Third Claimant is, however, different in this respect. Although I am satisfied that her allegation of racism would be understood to be an expression of opinion, her Tweet did not indicate whether in general or specific terms the basis of her opinion. As such, she has not established the second condition of the defence of honest opinion under s.3(3). Whatever the width of the term “indicated” in s.3(3), it cannot be interpreted to embrace the facts of the Third Claimant’s case. The Defendant’s protest against Sainsbury’s certainly cannot be described as being of such importance, prominence, significance or notoriety as to amount to a matter of common knowledge, meaning that it was obvious to all readers of her Tweets that it was the basis of her opinion. The hypothetical ordinary reasonable Twitter user, reading the Third Claimant’s Tweet, would simply not know (from the Tweet) the basis of the criticism. It is not obvious from the Tweet that she was referring to something that he had said or done. There is no indication, even on a general level, that she was referring to the Defendant’s suggestion of a boycott of Sainsbury’s. Mr Callus is right to submit that there was no indicated basis for the expressed opinion. As such and if the Counterclaim against the Third Claimant proceeds, she will not be able to advance a defence of honest opinion in answer to the Defendant’s Counterclaim for libel.

Having stated my conclusions on the preliminary issues, it is perhaps important that I make clear that I am resolving only these preliminary issues. Apart from the availability of an honest opinion defence for the Third Claimant, the Court is not in a position to resolve any defences that may be raised to the claim or the counterclaim. Any such issues will have to be resolved later in the proceedings.

For example, 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.

For those who may wonder why the Court has not resolved this important issue as part of the trial of these preliminary issues, it is because, unless capable of being disposed of on an application for summary judgment, the issue of serious harm to reputation requires an assessment of evidence that, having regard to the other related issues that require determination, can only be carried out fairly at a final trial.

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