Is Calling Someone “Racist” Or “Paedophile” On Social Media Defamation?

Heated arguments and trolling on social media are very common nowadays. We may at some point have been at the receiving end of unpleasant comments and feel the urge to say something back. However, our retaliation may amount to defamation. For instance, does calling someone “racist” and “paedophile” in an online argument amount to defamation?

Fox v Blake and Another [2023] EWCA Civ 1000

Case background

The Court of Appeal has recently decided on this issue in the case of Fox v Blake and Another [2023] EWCA Civ 1000.

The case concerned a battle of tweets between four people – Laurence Fox, Simon Blake, Colin Seymour and Nicola Thorp. It began with Fox’s tweet quoting Sainsbury’s tweet about Black History Month. In his tweet, Fox stated:

This provoked responses from Blake and Seymour on the same day.

Thorp tweeted:

Blake quote-tweeted Fox’s Sainsbury’s tweet and said:

Seymour quote-tweeted Mr Fox’s Sainsbury’s tweet and said:

Later in the day, Fox responded to the above three tweets by posting three other tweets, quoting in each the relevant tweet and used the word “paedophile”.

In response to Blake’s tweet, Fox tweeted:

In response to Seymour’s tweet, Fox tweeted:

In response to Thorp’s tweet, Fox tweeted:

The issue before the Court was whether (and which) of these tweets amounted to defamation. Whilst the same words, “racist” and “paedophile”, were used in the tweets, whether they constitute defamation depends on the contexts in which they were used.

Determining the meaning of words used

The Court of Appeal set out the legal principles for determining whether the words used bear defamatory meaning. It is the natural and ordinary meaning of the words as conveyed to and understood by the hypothetical ordinary reasonable reader. That meaning is to be determined objectively by reference to the words themselves. The intention of the author is irrelevant. However, the medium of expression and the context in which the words appear are important.

Words posted on social media are seen in their context and medium used. The Court considered that postings on social media are “in the nature of conversation rather than carefully chosen expression” and the meaning received by an ordinary reasonable reader is likely to be “more impressionistic” than from traditional printed press.

Defence of honest opinion

Section 3 of the Defamation Act 2013 provides the defence of honest opinion. In order to succeed in establishing this defence, a defendant must be able to prove that the statement made was an opinion, as opposed to an allegation of fact.

The elements of the defence of honest opinion are set out in sections 3(2) to (4) of the Defamation Act 2013:

As with meaning, the Court will only look at the words used in their immediate context, and the assessment is an objective one, i.e. how would the ordinary reasonable reader understand them?

If the statement complained of contains references to the basis on which it is made, such as any supporting facts or extraneous materials, it is more likely to be considered a statement of opinion.

Court of Appeal’s decision

At first instance, the Judge found that Blake’s and Seymour’s tweets were statements of opinion because each had quoted Fox’s tweet and thus would appear to the ordinary reasonable reader that they made a comment that Fox is a racist based on Fox’s tweet. Whilst Thorp’s tweet did not quote Fox’s tweet, the Judge still considered it to be a forceful expression of her opinion but not an allegation of fact. However, since Thorp did not set out the basis of her opinion, she failed to establish the defence of honest opinion. As for the tweets posted by Laurence Fox which stated that Blake, Seymour and Thorp are paedophiles, the Judge found them to be allegations of fact and thus amounted to defamation.

The Court of Appeal affirmed the Judge’s decision. Blake’s and Seymour’s tweets clearly set out the facts on which they based their opinion by quoting Fox’s tweet. The context of these tweets clearly indicated that they were comments on Fox’s behaviour.

In relation to Fox’s tweets accusing others of being a “paedophile”, the Court of Appeal considered Fox’s lack of reference to any basis for his tweets significant. The “paedophile” tweets followed immediately after tweets by Blake and Seymour with no other tweets quoted or referred to. The Court of Appeal did not accept that the ordinary reasonable reader would obviously understand Fox’s complex rhetorical point that he was no more a racist than they were paedophiles.

However, the Court of Appeal treated Fox’s response to Thorp’s tweet differently. Fox, in his tweet, adopted the precise wording of Thorp’s tweet and simply substituted “paedophile” for “racist” which would be obvious to the ordinary reasonable reader that Fox intended to mimic Thorp’s tweet and did not intend to use the word “paedophile” to accuse Thorp of being a paedophile. It was in this sense that Fox’s tweet was a rhetorical way of expressing his objection to Thorp and therefore did not constitute defamation.

Comment

This case is a perfect example of the nuances of defamation. Whether words written or uttered constitute defamation is a highly fact-sensitive inquiry and requires close examinations of the context in which they were being used. As seen in this case, the same words used in different manners can be treated entirely differently in the eyes of the law. This case also demonstrates that statements made on social media, no matter how short and casual they may appear to be, can make one liable for defamation.