The actor Laurence Fox was once again in the headlines recently after being sacked by GB News following his outburst regarding journalist Ava Evans and his arrest for allegedly conspiring to cause criminal damage to ULEZ cameras. Through all of the latest controversy, it would have been easy to forget another recent saga involving a Twitter war and defamatory tweets in the case of Blake, Seymour & Thorp v Laurence Fox  EWCA Civ 1000.
A typical Twitter escalation
The claim related to a Twitter dispute from October 2020. Mr Fox tweeted the supermarket Sainsbury’s regarding their public statement in support of Black History Month (the Sainsbury’s Tweet). Mr Fox criticised this, declaring that he would not “be shopping in your supermarket ever again whilst you promote racial segregation and discrimination”.
In response, each of the claimants posted Tweets, which described Mr Fox as “racist”, and (in the case of Mr Blake and Mr Seymour) quote-Tweeted his Sainsbury’s Tweet. Importantly, Ms Thorp’s Tweet was longer and did not quote-Tweet the Sainsbury’s Tweet, as she posted:
“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”.
Mr Fox retaliated, quote-Tweeting each claimant’s Tweet and calling each of the claimants “paedophiles”. His Tweets in response to each were slightly different. In relation to Mr Blake and Mr Seymour respectively, Fox wrote “pretty rich coming from a paedophile” and “Says the paedophile”. However, in relation to Ms Thorp he posted the longer Tweet:
“Hey @nicolathorp. Any company giving future employment to Nicola Thorpe [sic] or providing her with a platform does so with the complete knowledge that she is unequivocally, publicly and undeniably a paedophile”.
The claimants sued Mr Fox for defamation. He counter-claimed arguing that the claimants’ original Tweets were defamatory of him. It is important to state at the outset that Mr Fox did not intend to suggest seriously that any of the claimants is in fact a paedophile but intention is not relevant when it comes to determining the meaning of words in defamation cases.
In the High Court, at a trial of the preliminary issues (ie not a full trial of the case), Mr Justice Nicklin found that the claimants’ tweets meant that Mr Fox “was a racist” but that these were each statements of opinion. The Judge’s view was that “racist” was a word that almost always signifies a statement of opinion.
In relation to Mr Fox’s Tweets, Nicklin J held that the meaning was 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”. The Judge concluded this was a statement of fact, rejecting Mr Fox’s contentions that the reasonable reader would have understood him to be making a “rhetorical comment” or that the allegation that someone is a paedophile was “mere abuse” (this phrase is relevant because insults or abuse with no defamatory imputation are not actionable).
Mr Fox appealed Nicklin J’s decision to the Court of Appeal.
Outcome in the Court of Appeal
The Court of Appeal rejected Mr Fox’s appeal in relation to the claimants’ Tweets and concluded that he was entitled to form the impression that they were each expressing opinions rather than facts. This is important because (provided certain other requirements are met) the Tweets may be able to benefit from an honest opinion defence under section 3 Defamation Act 2013. However, Ms Thorp’s Tweet will not have this defence available because (by not quote-Tweeting Mr Fox’s Sainsbury’s Tweet) she had failed to indicate the basis of her opinion (which is a requirement for any defence of honest opinion to apply). As the case progresses, Ms Thorp will therefore need to demonstrate that her contention that Mr Fox is a racist is substantially true.
Turning to his appeal about his own Tweets, the Court of Appeal rejected Fox’s arguments on his (very short) tweets about the first two claimants (ie Mr Blake and Mr Seymour), where the one striking word was “paedophile”. Given the brevity of the Tweets, they were found to be “straightforward assertions” and the Court did not accept that readers would have gathered from them the rhetorical point Mr Fox claimed to be making (see above). The Court also emphasised that intention is immaterial to determining meaning in defamation cases (see our previous article on defamation in the context of jokes).
Mr Fox was however successful on his appeal regarding his Tweet in response to Ms Thorp. The Court of Appeal concluded that Nicklin J was wrong to decide that this Tweet meant Ms Thorp was a paedophile. This was because of the repetition by Mr Fox of Ms Thorp’s words. This was deemed to be a considered response and the Court was satisfied that the ordinary reasonable reader would not have taken the use of the word “paedophile” literally, because there was obviously an element of mimicry. Ms Thorp’s claim was dismissed as a result, since Mr Fox’s Tweet in relation to her was deemed not to be defamatory when reassessed as above.
The judgment reiterates well-established principles in defamation law, and the importance of differentiating between statements of opinion and statements of fact. Intention is irrelevant - words and context are key to determining meaning and whether or not a statement is defamatory.
The case is not over (save for Ms Thorp’s claim against Mr Fox). On both sides, it is argued that the Tweets in question did not cause serious harm to the other’s reputation (a necessary threshold in defamation claims). Mr Fox argues in addition that his Tweets were a reply to attack (a defence which allows a proportionate response to an attack on integrity that is reasonably necessary to protect reputation). Meanwhile, Mr Blake and Mr Seymour argue that their Tweets amount to honest opinion, while (as above) Ms Thorp argues that her Tweet was substantially true.
A practical lesson can be taken from the case. When expressing a critical (and potentially contentious) opinion of someone on social media, it is important to indicate the basis of that opinion. By failing to “quote-tweet” Mr Fox, Ms Thorp has set herself apart from the other claimants. Ms Thorp is now faced with the more challenging burden of having to demonstrate that her remark was substantially true (which must be supported by evidence).
It is fair to say it would be a surprise if this is the last we hear of this case.
With many thanks to Méabh Kirby, a current trainee solicitor, for their help in preparing this briefing.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2023