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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Blake & Anor v Fox [2024] EWHC 146 (KB) (29 January 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/146.html Cite as: [2024] EWHC 146 (KB) |
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KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) SIMON BLAKE (2) COLIN SEYMOUR |
Claimants |
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- and - |
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LAURENCE FOX |
Defendant/Counterclaimant |
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- and - |
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NICOLA THORP |
Defendant to Counterclaim |
____________________
Mr Patrick Green KC, Ms Alexandra Marzec & Mr Greg Callus (instructed by Gateley Legal) for the Defendant/Counterclaimant
Hearing dates: 22nd November -1st December 2023
____________________
Crown Copyright ©
Mrs Justice Collins Rice :
Introduction
Mr Laurence Fox
Mr Simon Blake
Mr Colin Seymour
Ms Nicola Thorp
Factual Background
(i) The year 2020 in the UK
(ii) Mr Fox's national profile in 2020
Laurence Fox set up the Reclaim Party in October 2020 after appearing on BBC Question Time in January that year. For challenging the woke orthodoxy of "white privilege" and "systemic racism" he was cancelled from a 22-year acting career.
This experience changed Laurence's life overnight and now he is dedicating his life to protect others from being prevented from contributing to the national debate.
Laurence not only realised freedom of speech was under grave peril: it became clear our media hates our country and culture, and we've been betrayed by careerist, so called liberal politicians.
Reclaim your country!
Fellow humans who are #Sikhs
I am as moved by the sacrifices your relatives made as I am by the loss of all those who die in war, whatever creed or colour.
Please accept my apology for being clumsy in the way I have expressed myself over this matter in recent days.
And then, separately, but quote-tweeting: 'I stand by everything else I said and will continue to do so. Sleep well.'
So here I am, a posh white bloke, who loves his job, who has worked hard to be good at it, facing an uncertain future all for the heinous sin of shaking my fist at the ugly, hypocritical and inconsistent god of progressivism. But unhappily for some (my agent and bank manager mainly) I will continue to say what I believe to be true. I'm not always right and very often wrong, but unless we can accommodate multiple understandings of a situation soon, it will end with us abandoning words and reason, the tools given to us to heal and come together, in favour of the simpler but for more terrifying tools of engagement: fists, knives and guns. It's already happening, and we should all be concerned by it. We cannot stand by in silence. Words are the answer.
(iii) The events of October 2020
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.
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
Further reading here
[a link to Sainsbury's website]
[quote-tweet of Sainsbury's rainbow-background tweet of the afternoon of 1st October]
What have we been doing to support our colleagues?
We've relaunched our network that supports ethnically diverse colleagues. I AM ME @ Sainsbury's now has over 2600 members and a very active schedule of events. We run mentoring circles, awareness days, learning sessions and celebrations.
Recently, we provided our black colleagues with a safe space to gather in response to the Black Lives Matter movement.
As part of our commitment to ensure that our black colleagues have a fair and enjoyable experience working at Sainsbury's, we are reviewing and publishing our ethnicity pay gap later this year.
i) The exchange with Mr Blake
At 5.11pm, Mr Blake quote-tweeted Mr Fox's tweet under the comment 'What a mess. What a racist twat.'. At 5.29pm, Mr Fox quote-tweeted Mr Blake under the comment 'Pretty rich coming from a paedophile'. At 5.32pm, Mr Blake tweeted a screenshot of that to his followers, under the comment 'Here we go.'. At 5.37pm, he asked Mr Fox '@LozzaFox just checking whether you are mixing me up with someone else or if this is just a standard retort.' At 6.01pm Mr Blake tweeted out 'Seems that Mr Fox may have mixed me up with someone else so for the avoidance of doubt I am 46 from Cornwall and I have lived in Cornwall, Cardiff and London.'
At 7.11pm, Mr Blake quote-tweeted Mr Fox, asking him 'please would you remove this tweet as you know it to be untrue. Thanks.'
ii) The exchange with Mr Seymour
At 5.19pm, Mr Seymour, tweeting as Crystal, quote-tweeted Mr Fox's tweet under the comment 'Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.'. At 5.30pm, Mr Fox quote-tweeted Crystal under the comment 'Says the paedophile.' At 6.07, Crystal quote-tweeted that under the comment 'Now adding homophobic, boring and lazy to your list of adjectives. What a sad little life Jane.'
iii) The exchange with Ms Thorp
At 4.28pm, Ms Thorp tweeted 'Which part of this do you actually have a problem with?' At 4.45pm she 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.
It appears that Ms Thorp and Mr Fox exchanged a few tweets with a view to a reasoned discussion, Ms Thorp pursuing the question of what part of the Sainsbury's tweet he considered to be promoting 'racial segregation and discrimination'. But at 5.51, Mr Fox tweeted
Hey @nicolathorp
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
The following ensued:
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.
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.
If the game nowadays is to throw baseless insults and accusations about, then we should all be free to participate.
Having said that, I have deleted the tweets posted yesterday, in response to being repeatedly, continuously and falsely smeared as a racist, as they just serve as a distraction to the important work that needs to be done.
Well I think if one is going to throw around a baseless accusation of racism, which as you say, historically could destroy people's careers, and actually has destroyed people's careers, in many ways, up and down the country, to - to throw around these baseless accusations, I think, well, if you are going to do that, then why not - if that's the game, why not throw around some baseless accusations in return. I happen to think it's probably not the wisest strategy, but you know, I'd had a very long week, and I - I think myself, and others, feel... find it very, very difficult, and hurtful, to be called a racist without any evidence whatsoever, and
I don't think two wrongs make a right, with - on reflection. I don't think one should play their game, ultimately, I don't think it's - it's the right - if you are trying to adopt a more principled stand, then playing their game is not the wisest move. So, I don't think it was a genius move, myself.
NF: Do you regret suggesting that the people who you got into a Twitter fight with were paedophiles?
LF: I think what was happening was I - having now had several months of being smeared baselessly and without any evidence whatsoever, as a racist, which I have put up with - I thought, I'll just throw another meaningless word back at you if that is the state of discourse we have reached: that words mean nothing, then that word- I could have said anything. I could have called them a lollipop.
NF: With hindsight, how wise was that action if you are the leader of a political party, that is the sort of stuff of the playground, isn't it?
LF: Well, Twitter is a bit of a playground in that way, isn't it?
NF: Why do you engage to that level then?
LF: Yeah, that is a good question why do I engage to that level?
NF: If it's a playground, why, as someone who has benefited from the education that you have, and you know your way with words, why would you choose 'paedophile'? Doesn't that debase your argument to a degree?
LF: Well, I think the point is a linguistic one. If you are going to make an allegation against someone as serious as racism, which can, essentially, can be a career ending allegation, which, as these people well know. So, my response is to go: what is the most cruel word I can respond to you with? So you can understand what it is like to feel falsely and baselessly accused of something which is extremely serious.
To that end, and not because I've been sued (I haven't), or because anyone has put me under any pressure to say something (they haven't), I'd like to apologise for the way I reacted last week in reaction to being constantly (without any evidence whatsoever) labelled a racist.
I adore our beautiful language. Seeing it corrupted by casually tossing horrible insults around in order to maintain a climate of fear to silence different opinions saddens me hugely. I was attempting to make the point that words have meanings that are extremely powerful.
On reflection, I could have done this in a wiser and more effective way. I abhor discrimination in all its forms, just as I take a principled stance against racism. The end.
Legal Framework
(i) The pre-determined preliminary issues
i) The 'single natural and ordinary meaning' of Mr Fox's tweets responding to Mr Blake and Mr Seymour ('Pretty rich coming from a paedophile' and 'Says the paedophile') 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'. This was an allegation or imputation of fact. The imputation was 'of defamatory tendency at common law' that is, in the meaning determined, it would 'substantially affect in an adverse manner the attitude of other people towards a claimant, or have a tendency to do so' (Triplark Ltd v Northwood Hall (Freehold) Ltd [2019] EWHC 3494 (QB) at [11]).
ii) Mr Fox's tweet responding to Ms Thorp was different. He had quote-tweeted her allegation, and reproduced it simply substituting 'paedophile' for 'racist'. 'Mr Fox was not using the word 'paedophile' literally, to accuse Ms Thorp of being a paedophile; he was using that word rhetorically as a way of expressing his strong objection to being called a racist. Used in that way it was not defamatory' (Court of Appeal judgement at [72]). Ms Thorp had originally claimed in libel against Mr Fox on the basis of his tweet to her, but since it was found not to have any defamatory tendency, no tort could have been committed, and her claim was dismissed on that basis.
i) The 'single natural and ordinary meaning' of each of Mr Blake's, Mr Seymour's and Ms Thorp's tweets about Mr Fox was that 'the Defendant was a racist'. This was in each case an expression of opinion. Each too was of defamatory tendency at common law.
ii) Mr Blake and Mr Seymour had quote-tweeted Mr Fox's tweet calling for a boycott of Sainsburys, and that 'would appear to the ordinary reasonable reader to be the basis of a comment that the Defendant was a racist' (High Court judgment at [56]).
iii) But again, Ms Thorp's tweet was different. Her tweet 'did not indicate whether in general or specific terms the basis of her opinion' (High Court judgment at [59]).
(ii) Serious Harm
(iii) The pleaded defences
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.
Analysis
(i) Mr Blake's and Mr Seymour's cases on 'serious harm'
(a) Inherent gravity of the allegations
(b) Extent of publication
It is true that the First Tweet was transient. The Second Tweet less so, although any tweet disappears from the reader's view as time goes on. But this is a weak point. What matters when considering transience, is not the period of time for which a person is exposed to the message, but the impact the message has. It is a commonplace of experience that live broadcasts can have a powerful impact, even if the viewer sees them once only. Print copies of newspapers are not often read more than once.
To that might be added the further commonplace of experience that the impact of tweets, and their propensity to be retweeted, is often highest in the minutes and hours in which they are freshest in any event.
(c) Situation of the claimants
(d) Inherent probabilities and the balance of the evidence
were short and pithy tweets of between three and six words. They followed swiftly after the tweets to which they responded. They do not give the appearance of being carefully considered or crafted. They are straightforward assertions. The one striking word was "paedophile". The reader trying to understand what Mr Fox was getting at was given very little else to work with. The only relevant context (on the judge's findings) was that which would have been apparent to all readers. In substance that was no more than the quote-tweet. On the face of it, the allegation was the one complained of.
That is a serious allegation. It has no apparent connection with the statement quote-tweeted by Mr Fox. That statement was clearly an attack on him. The reader would probably have understood that Mr Fox was seeking to counter the charge that he was a racist. But it by no means follows that it would be obvious to the reader that what he was trying to do was to make the somewhat complex rhetorical point that has now been identified. It is common experience that people accused of wrongdoing sometimes lash out in response by denouncing their accusers, in all seriousness, for some similar or other misconduct.
Mr Fox says that he did not intend to allege that any of the claimants was in fact a paedophile. But I do not think he can complain of being misunderstood on these occasions. The constraints of Twitter gave him plenty of room to say more than he did in these tweets. There is a good deal of force in Ms Rogers' submission to us: if Mr Fox had wanted to say "I am no more a racist than you are a paedophile" he could have done so. ([66]-[70])
We're proud to stand in solidarity with our Deputy Chair Simon Blake in his case against Laurence Fox. At Stonewall we believe that it's important for white people to challenge racism when we see it, and be staunch allies to people of colour.
Calling gay men 'paedophiles' is a homophobic slur that has a long, dark history of being used to paint us as threats to children and stop us from being treated as equal citizens. Using it to silence a gay man standing up for racial justice just demonstrates how far we have to go before we can say that we live in a society where we are all valued, and can live our lives in safety and dignity.
(ii) Mr Fox's 'qualified privilege' defence
A person may publish, in good faith, false and defamatory statements about another in reply to an attack by that other, and as a defence to that attack. The rationale is that a person who has been attacked publicly has a legitimate right or interest in defending himself against it, and the [readers or viewers] of the original attack have a corresponding interest in knowing his response to it. The response has to be proportionate to the original attack in that it should not be made more widely than the attack or include irrelevant statements. (Bento v Chief Constable of Bedfordshire [2012] EWHC 1525 (QB) at [101].
(iii) Mr Fox's case on 'serious harm'
(a) Gravity of the allegations
(b) Extent of publication
(c) Situation of the counterclaimant
Dear Sue,
Thank you for talking on Friday. I appreciate this is a very complex and shifting time and you are trying to balance your need to keep your team feeling secure and also trying to protect my professional prospects.
I have to say that I disagree with you about #AllLivesMatter. All lives includes all ethnicities, sexual orientations and beliefs. It is the only area where we can all talk with the emphasis on equality. To elevate one set of racial characteristics above another, because a certain group 'feels' that they are systemically oppressed (against the available evidence) succeeds only to give actual racism an area to propagate. I would be more than happy to share with you the overwhelming amounts of data in this area that support the majority view that the United Kingdom is extremely fair and tolerant, is becoming even more so and has done more than perhaps any country on earth to right the wrongs of the past.
I am staunchly against any form of discrimination. I abhor racism. I feel duty bound, for my children's sake, to resist those who seek to destabilise society with this pernicious ideology. My goal is to support free expression. Only through free debate can ideas like 'Systemic racism', 'White privilege', 'unconscious bias' and critical race theory' be challenged and exposed for what they really are. Modern Racism.
I love my job. I have devoted many years to being good at it and it is a source of great sadness that I have been shunned for expressing what is very much the majority view. It's no surprise that Show business is steeped in this new religion of intolerance and censorship, so I understand that I'm going to be black listed for a while. I feel very blessed for the opportunities I have had in the past and very grateful to those who can also see what's going on standing by me with financial support and now a full time job.
I want to ask that you don't give up on me. Cancel Culture cannot continue in this way, or it won't just be me, it'll be you, your friends and colleagues that fall victim as well. My goal is to do everything I can to create an opportunity where people feel free to express themselves again so that I can walk back onto a film set, head held high and proud that I played some part in restoring some sanity to this country we call home.
Love Always
Laurence
(d) Inherent probabilities and the balance of the evidence
(iv) The 'honest opinion' and 'substantial truth' defences
Decision