Raphael Berg v Owen Jones

This is a libel claim. On 19 January 2026, Master Dagnall ordered the determination of preliminary issues as to meaning and related issues. This judgment follows the short trial of those issues.

The claimant is Middle East Editor for online BBC News. The defendant is a journalist and political activist. The claim is brought in respect of an article first published on 19 December 2024, under the headline “The BBC’s Civil War Over Gaza”, on the website Drop Site News. The article is incorporated in the appendix to this judgment (with added paragraph lettering/numbering, and side-lining to indicate the words complained of).

In accordance with the usual procedure, no defence has yet been filed, but the defendant’s position is that the five paragraph introduction was not written by him but by the founding editor of Drop Site News, Nausicaa Renner. If it were relevant to do so, he may deny responsibility for its publication. In these circumstances, while it is agreed that I must in any event consider the words complained of in the context of the article read as a whole (including the introduction), I was asked to indicate if I took the view that consideration of the article without the introduction would have led to different answers to any of the preliminary issues. Neither party contended that it would make a difference. I agree: it would not do so.

In accordance with established practice, I read the article to capture my initial reaction before reading the parties’ submissions and hearing oral argument.

The order provides for the following matters to be determined as preliminary issues:

The wording of preliminary issues (b)(ii) and (iii) is not quite right. Those issues reflect the first and second conditions for establishing the statutory defence of honest opinion. Section 3 of the Defamation Act 2013 provides, so far as material:

“(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.” (Emphasis added.)

It can be seen that the statutory test refers to the “statement complained of”, not the meaning of that statement, or the imputation it conveys (cf s.2(1) which refers to the “imputation conveyed by the statement complained of”): see Millett v Corbyn [2021] EWCA Civ 567, [2021] EMLR 19, [17] (Warby LJ). It is common ground that I should address preliminary issues (b)(ii) and (iii) on the basis that the words “statement complained of” should be substituted for “meaning found”.

The court’s task is to determine the natural and ordinary meaning of the words complained of, which is the single meaning the words would convey to the hypothetical ordinary reasonable reader. The legal principles are well-established and uncontroversial.

The meaning is to be determined objectively, by reference to the words themselves, in the context of the article read as a whole. No other evidence is admissible. The author’s intention is irrelevant.

The governing principle is reasonableness. The hypothetical reader is one who is neither avid for scandal nor naïve. Judges should have regard to the impression the words make upon them, avoiding a too literal approach or over-elaborate analysis.

These points, and a fuller account of the principles governing the determination of meaning, are to be found in Stocker v Stocker [2019] UKSC 17, [2020] AC 593, Millett v Corbyn [2021] EWCA Civ 567, [2021] EMLR 19, Blake v Fox [2023] EWCA Civ 1000, [2024] EMLR 2, and Nicklin J’s well-known distillation of the principles in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25, which I have applied.

The article is one in which the defendant repeats the words of a number of third parties, and so the repetition rule applies. The words must be interpreted by reference to the underlying allegations of fact. The repetition rule prevents a court from deciding that simply because it is a report of what someone else said, it carries a lesser meaning than the original allegation. Nevertheless, context remains critical. The context may signal to the reader that the allegation has been adopted and endorsed, or repudiated and discounted. There may be a bald repetition, in which case, as Lord Devlin put it in Lewis v Daily Telegraph Ltd [1964] AC 234, 284:

“For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.”

The meaning to be attached to the repetition of the allegation has to be judged, applying the well established principles to which I have referred, looking at the publication as a whole: see Brown v Bower [2017] EWHC 2637 (QB) [2017] 4 WLR 197, [19]-[32] (Nicklin J) and Koutsogiannis [15].

Bearing in mind that the meaning sets out the proper parameters of the defence of truth, if any is to be advanced, the meaning must focus on the claimant, even if the article also levels allegations against others: Sharif v Associated Newspapers Ltd [2021] EWHC 343 (QB), [33] (Nicklin J).

A statement is defamatory at common law if it (a) attributes to the claimant behaviour or views that are “contrary to common shared views of our society” (such that they would tend to lower the claimant in the estimation of right-thinking people generally), and (b) would tend to have a “substantially adverse effect” on the way that people would treat the claimant: see Millett v Corbyn [2021] EWCA Civ 567, [2021] EMLR 19, Warby LJ.

The principles to be applied when determining whether the words complained of contain allegations of fact or opinion are also well established. As I said in Ware v Wimborne-Idrissi [2021] EWHC 2296 (QB) at [16]:

“First, the statement must be recognisable as opinion, as distinct from an imputation of fact. Secondly, opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc. Thirdly, the test is an objective one and the ultimate determinant is how the words would strike the ordinary reasonable listener or reader. Fourthly, the subject-matter of words and their context may be important indicators of whether they are fact or opinion. Fifthly, not every inference counts as opinion: context is everything. The bare statement of an inference, without reference to the facts on which it is based, may well appear as a statement of fact. Whereas the more clearly a statement indicates that it is based one some extraneous material, the more likely it is to strike the listener or reader as an expression of opinion. See Koutsogiannis per Nicklin J at [16], Triplark Limited v Northwood Hall (Freehold) Limited [2019] EWHC 3494 (QB) per Warby J at [15]-[17], and Butt v Secretary of State for the Home Department [2019] EWCA Civ 933, [2019] EMLR 23 at [25]-[39].”

And see Blake v Fox, [23]-[25] (Warby LJ).

The authorities counsel against the dangers of determining the issues of meaning, whether the statement is fact or opinion, and whether the meaning is defamatory at common law, in too linear or compartmentalised a fashion, as the answers may throw light on each other. What is required is a “flexible and holistic approach”: see Peck v Williams Trade Supplied Ltd [2020] EWHC 966 (QB), [11] (Nicklin J); British Chiropractic Association v Singh [2010] EWCA Civ 350, [2011] 1 WLR 133, [32] (Lord Judge CJ, giving the judgment of the court); and Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB), [33] (Warby J).

The claimant’s pleaded meaning is:

“That Mr Berg is a rogue journalist and editor who deliberately disregards and breaches the duties of accuracy and impartiality that he knows are required of him as an Editor for BBC News online, with the purpose of presenting news reports falsely favourable to Israel that are intentionally biased and that deliberately ignore contrary evidence.”

The meaning contended for in the defendant’s Notice of Case for the Trial of the Preliminary Issues is:

“In his role as a journalist and BBC News Online Middle East editor, the Claimant is responsible for coverage of the Israel-Palestine conflict that appears to show bias in favour of Israel, in breach of the BBC’s own Editorial Guidelines.”

The claimant contends that the statement complained of was a statement of fact whereas the defendant submits that, insofar as it was defamatory (as reflected in the underlined words in the defendant’s proposed meaning), it was a statement of opinion.

The defendant concedes that his meaning is defamatory. The answer to issue (b)(i) inevitably depends on the meaning found by the court but it was not an issue on which there was any argument.

On behalf of the claimant, Mr Stables particularly emphasised that the governing principle is reasonableness. He acknowledged that the word “rogue” is not directly derived from the article but he submits it is the natural meaning to be inferred by the hypothetical reader. It is an apt distillation, reflecting that the claimant is singled out as unethical, unprofessional and rotten in the way he goes about his journalism with regard to the Israel-Palestine conflict. Mr Stables contends that the meaning should, in some way, reflect that the claimant is being accused of being a bent journalist who actively, deliberately and intentionally distorts and sabotages the news with the objective of ensuring the output favours Israel. The allegations made against the claimant by others who are quoted in the article are adopted by the defendant: in the article, he does not criticise or knock down anything said by those third parties. So there is nothing to lessen the gravity of their allegations.

Mr Stables contends that it is immediately clear, and made evident throughout the article, that it is the outcome of an investigation. While there is criticism of the claimant’s own work as a journalist, the article is principally about the claimant’s work as an editor, based on information provided by insiders within the BBC which the reader is not in a position to critique. It is obviously a statement of fact, he contends, based on a behind the scenes fact-finding investigation.

On behalf of the defendant, Mr Eardley KC stressed that although the article is predominantly critical of the claimant, there is a significant amount of material from the BBC, expressing a contrary view, which would not be lost on the reader. He submits that such material is indicative that this is a statement of opinion, but if I were to conclude otherwise then the balancing material should be reflected by reducing the gravity of the meaning to Chase level two. This term comes from Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11, in which Brooke LJ identified at [45] three levels of gravity, broadly, (1) the claimant is guilty of the act, (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. Chase levels are a helpful shorthand, but should not be treated as a straitjacket forcing the court to select one of the three prescribed levels of meaning.

Mr Eardley contends that on its face the article is a response to material the claimant has himself publicised (whether as a journalist or editor), and the fact that it is a response to a “corpus of published work”, on a subject-matter which the reader would understand is inherently contestable, which naturally invites a response, would incline the reader towards interpreting the article as a statement of opinion: Keays v Guardian Newspapers Ltd [2003] EWHC 1565 (QB), [48] (Eady J); Butt v Secretary of State for the Home Department [2019] EWCA Civ 933, [2019] EMLR 23, [29] (Sharp LJ).

Mr Eardley acknowledges that the article accuses the claimant of bias but submits that, while it is possible to point to a sentence here and there which is suggestive of intentional bias, the overwhelming impression given by the article read as a whole is that it is neutral as to whether the claimant’s bias is conscious or unconscious. If, however, I were to take a contrary view, then he relies on Eady J’s observation in Keays at [49] that where “a journalist draws such an inference about a state of mind which she cannot, in the nature of things, verify, then it will generally be clear to any reasonable reader that it does not purport to be an objective statement of fact capable of verification”.

Mr Stables rejected the contention that anything in the article reduces it below Chase level one. He contends there is no “antidote”. References to the BBC’s response are immediately undermined (e.g. at paragraphs 21 and 105). He distinguished Keays on the basis that the bulk of what the claimant is accused of is watering down and interfering with the work of others; his own journalism is merely offered up as further evidence of bias in his editing, which is the central allegation. As regards state of mind, Mr Stables relied on Gatley on Libel and Slander (13^th ed., 2022), 13-009, where the authors cite Warby J’s observation in Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB), [2015] 1 WLR 971 at [115]:

“It is not the law that an imputation of a state of mind amounts in all circumstances to a comment. It depends on the context.”

The article is a long piece, as the reader is advised at the outset, addressing a serious topic of evident political and public importance. It would be read on a website, with the reader scrolling through the article. The reader is given to understand that the author has investigated the matter, speaking to a significant number of journalists and former journalists at the BBC. I would infer from the nature of the article an intelligent readership, but the hypothetical reader would not be expert in absorbing and digesting such a quantity of material: they would take away key points that are reinforced and an overall impression.

The reader of an article of this nature would know, and it is stressed early on in the headline alluding to “civil war” within the BBC, in the reference to the views expressed by “the UK’s own Conservative leaders” (paragraph 2), and in the text of the email from the CEO of BBC News & Current Affairs which is reproduced in full (paragraph 8), that the Israel-Palestine conflict is a subject on which differing, often polarised, views have been expressed.

While the reasonable reader would understand that the claimant is accused of taking a central, active role in editing the BBC’s output regarding the Israel-Palestine conflict in a way that is biased and imbalanced, the overall impression would not be that he is accused of distorting the coverage in a way that he knows is biased, imbalanced and in breach of the BBC’s editorial standards. I agree that on analysis a few sentences can be picked out that support the claimant’s submission, but that is not the impression I gained on first reading the article or that, in my view, an ordinary reasonable reader who is not unduly suspicious would take from reading the article once. The emphasis on the claimant’s history, friendships and associations; comparison with the views of leaders of the Conservative party; indications of credulousness, blindness and deference; rejection of the allegations by the leadership of the BBC; focus on editorial standards; and references to exceptions where the claimant’s writing and editing has resulted in work which is critical of Israel, all convey the general impression to the reader that the claimant’s alleged lack of objectivity may be subconscious. That is not a matter on which the article takes a position.

In my judgment, the central allegation that the claimant’s work on the Israel-Palestine conflict is biased, and fails to meet editorial standards would strike the reasonable reader as a statement of opinion. The article makes clear to the reader on numerous occasions that the assessment of pro-Israel bias is based on the product of the claimant’s editing and writing work. Many examples are given, enabling the reader to form a view. The fact that the edits made by the claimant would not be apparent from the published reporting does not detract from the impression that the allegation of bias is based on the body of work he has edited and written regarding the Israel-Palestine conflict. The fact that the allegation is so clearly based on a body of extraneous material, that it is published reporting which by its nature invites comment, and that it concerns a notoriously polarising topic, would all lead the reasonable reader to appreciate that the allegation is a statement of the defendant’s opinion.

Beyond the general allegation of bias, key examples are prominent and would remain with the reader. In particular, the allegations of promoting Israeli narratives and of failing to humanise Palestinian victims. However, these too would strike the reasonable reader as subjective assessments of the prominence and emphasis given to Israeli responses to news stories and of the way in which such stories are framed, reflecting the defendant’s opinion.

I find that the meaning of the words complained of is:

“The claimant, in his senior editorial role and as a writer, has consistently failed to meet the BBC’s editorial standards of impartiality and fairness by shaping coverage of the Israel-Palestine conflict so as to favour Israel, including by editing the BBC’s coverage in ways that (i) promote the government of Israel’s narratives; and (ii) fail to humanise Palestinians killed or injured in the conflict, thereby producing biased and imbalanced journalism.”

For the reasons I have given, I conclude that it is a statement of opinion. It clearly meets the test of being defamatory at common law.

Finally, it is plain that the statement complained of sufficiently indicated in general terms (as well as, on occasion, giving specific examples) the basis of the opinion, namely the BBC’s coverage of the Israel-Palestine conflict and the claimant’s own reporting.