Can Your Reply To An Attack On Social Media Form A Defence To Defamation?

In criminal law, self-defence is available as a defence to crimes committed by use of force if there is a clear and imminent threat of physical harm to one or another person. It also must be necessary, reasonable and imminent. This concept has been translated to defamation law as being attacked by someone on social media does not automatically give you a licence to defame that person in reply. This is shown in the recent ‘twibel’ case of Blake and Seymour v Fox [2024] EWHC 146 (KB).

Our previous blog discussed the background of this case and the Court of Appeal’s decision on the defamatory nature of the Defendant’s tweets. The Court of Appeal recently handed down another judgment regarding the Defendant’s counterclaim concerning the Claimants’ tweets. It highlights that there is indeed a reply-to-attack privilege to publish defamatory comments in response to an attack but only where they are proportionate and relevant.

Blake and Seymour v Fox [2024] EWHC 146 (KB)

Decisions

High Court – The Claimants’ Claim

The Court ruled in favour of the Claimants. The Claimants suffered from serious harm to their reputation as they were both homosexual men who worked with children, including vulnerable children, in circumstances where sexual propriety was of the essence. Also, they both remarkably shared a name with a convicted sex offender. The Court rejected the Defendant’s submission that calling someone a paedophile is a mere abuse and that an ordinary reasonable reader would have understood the tweet to be rhetorical word play. The Defendant appealed against the decision.

Court of Appeal – The Claimants’ Claim

The Court dismissed the Defendant’s appeal and upheld the High Court’s decision. It also held that the Defendant’s tweet in response to Ms. Thorp would have been regarded as rhetorical by the ordinary reasonable reader and, therefore, the tweet was not defamatory.

Court of Appeal – The Defendant’s Counterclaim

The Claimants (Defendants to Counterclaim) already successfully established serious harm, which is a key element of defamation. The issues before the Court were whether the Claimants defamed the Defendant (Counterclaimant) by calling him “racist”.

The Court found that the Defendant failed to establish that the Claimants’ tweets made any difference to his reputation or caused serious harm to him. The Defendant tried to claim the qualified privilege defence of reply-to-attack. The Court held that the reply-to-attack was “utterly random, and harmful, factual allegations of criminal paedophilia” that had nothing to deal with the statements he was responding to and were the “very epitome of mere retaliation”. Therefore, the tweets of “racist” were not defamatory. Ms. Thorp’s tweets were also not considered defamatory due to lack of serious harm.

Comment

This case explores the factors relevant to providing serious harm as well as the evidential requirements. Words and context are key to determining meaning and whether a statement is defamatory or not. Even if one is simply replying to an attack on integrity to protect his reputation, the reply has to be proportionate and reasonably necessary.