The high price of libel on social media – Case Comment on Blake and Seymour v Fox

Background

The origins of the dispute lie in a Twitter exchange in October 2020. Blake, Seymour and the broadcaster Nicola Thorp, referred to Fox as a "racist", after he tweeted negatively on a tweet by Sainsbury's about Black History Month. In response, Fox referred to Blake and Seymour, in separate quote-tweets, as 'paedophiles'.

Blake and Seymour brought a claim against Fox for libel. Fox counterclaimed for libel against them and also the broadcaster, Nicola Thorp, on the basis that they had called him a 'racist'.

The Court, in its final judgment on 21 January 2024, found Fox liable for defaming the claimants, noting that "the law affords few defences to defamation of this sort". However, the Court dismissed Fox's counterclaims against the claimants and Thorp. This was on the basis that Fox was not able to show that Seymour, Blake and Thorp's tweets caused, or were likely to cause, serious harm to his reputation "by making readers adversely change their minds about him", given Fox's previous and continued "political views, and his challenge to an 'orthodoxy' of contemporary social discourse on racism".

The latest judgment in this saga deals with the quantum of damages awarded to Seymour and Blake.

Principles

The Court began by setting out the established principles in assessing the quantum of damages for libel, the starting point being that damages in tort were to "restore the injured party to the same position he would have been in had the tort never been committed". For libel, the purpose of damages is to compensate for injury to a person's reputation and feelings, with the particular objective of vindicating the reputation of the claimant.

The assessment of damages is a "broad and holistic", fact sensitive exercise. It required the Court to take account of all the relevant facts of the case, including factors such as the gravity of the defamatory statement, the extent to which it was published, and evidence of the damage caused to the claimants.

The Court also considered the remedy of injunctive relief to restrain the republication of a libellous statement, and it emphasised that final injunctive relief was not a right, but a discretionary remedy. It would therefore consider all the circumstances of a case, including the parties' conduct and the risk that a defendant would repeat the libel if such relief was not granted.

The Court also considered its power under section 12 of the Defamation Act 2013, to order a defendant to publish a summary of the judgment.

Application

The Court then turned to applying these principles to the facts of the present case.

Quantum

The Court awarded £90,000 to each of Seymour and Blake. In determining the quantum of damages, the Court found the following:

1. The libel was published to a mass audience on social media and was further reported in the national media.
2. The inherent gravity of Fox's libel against the claimants was "intrinsically, an exceptionally grave and cruel allegation".
3. Blake and Seymour were particularly vulnerable to reputational harm by this libel, given their national profile on LGBTQ+ issues and "the safeguarding matters engaged by their respective livelihoods".
4. As a result of Fox's libel, the claimants were subjected to a "shocking and humiliating public ordeal". However, the claimants were also fortunate in that they were personally resilient people, who benefitted from a robust support network. Had the claimants been in a more vulnerable position, the Court may have been minded to award a higher sum in damages.
5. Fox did not maintain that he believed in the truth of the allegations, as shown by the fact that he had not pleaded a truth defence, but he argued at trial that the allegation was a 'fair reply to attack'. However, this argument was unsuccessful.
6. While Fox had expressed some regret in making the allegations, he had not provided any unequivocal admission or apology that his allegation was false and should never have been published.

Injunction

Given that Fox had failed to volunteer not to repeat the allegations in the future, in considering whether to award an injunction, the Court had to weigh up whether an injunction would infringe Fox's ECHR Article 10 right to freedom of expression.

It concluded that given Fox's pattern of impulsive behaviour on social media and amongst other things, his "disregard for or uninterest in impact on others", his "unfastidiousness about objective factuality" as well as him "experimenting with the extreme boundaries of free speech", there was a real risk that Fox would repeat his allegations against the claimants in the future. Accordingly, the Court awarded an injunction prohibiting Fox from making any similar allegations.

Ordering the defendant to publish a summary of the judgment

The Court recognised that ordering a defendant to publish a summary of the judgment would amount to an interference with his right to freedom of expression under Article 10 ECHR, and it would not do so unless it was necessary and proportionate.

The Court did not order Fox to publish a summary of the judgment as the liability judgment had already received widespread media coverage, as would the quantum judgment. In such circumstances, there was little more to be gained by republishing the judgment.

Comment

The principles applied by the Court to award remedies for libel, are generally uncontroversial. The judgment underscores the fact sensitive flexibility of the Court in awarding damages, particularly in the absence of a formal tariff for libel awards. The Court has previously held that there is a conventional cap of £300,000 on libel damages, which are reserved for the gravest and most widespread allegations pertaining to terrorism, murder and genocide (see Raj v Bholowasia [2015] EWHC 382 at [179] ; Monroe v Hopkins [2017] EWHC 433 (QB) at [78]).

In the context of the present case, £90,000 per claimant is significant but well within the established range of damages awarded by the Court. Collins Rice J's remark that the award of damages could have been "a multiple" of the present award, is interesting and reflects the position that quantifying the serious harm suffered by a claimant will, in part, be judged by reference to their personal circumstances and vulnerability. 

Nonetheless, the Court considered that the severity of Fox's statement, which was "a baseless and indefensible libel", justified the damages awarded. Yet the Court was also at pains to stress that the damages in this case were not intended to be punitive, but rather to reflect the importance of restoring Seymour and Blake's reputations to their previous state.

More broadly, the Court's judgment serves as a reminder of the perils of committing libel on social media. The Court, on liability and quantum, noted that Fox had strongly held beliefs on "free speech absolutism", as well as on a number of political and societal issues of the day. However, Fox's exercise of free speech in pursuance of his beliefs, had resulted in him violating the law of defamation. The Court here categorically noted that "free speech… is not necessarily consequence free", and deemed that the nature of Fox's libel was "not a species of free speech protected by Article 10" of the ECHR.

Although the Court did not flesh out that point further in its judgment, it is also relevant to note that freedom of expression is subject to qualification under Article 10(2) ECHR as is necessary and proportionate in a democratic society, including for "the protection of the reputation or rights of others".

For those who are active commentators on social media, the practical takeaway is clear: think very carefully before you publish. Case law has shown that there is a real litigation risk in publishing grave and false factual allegations about another person (or persons) to a mass audience on social media, even in circumstances where you feel that you are simply retaliating to a comment which you consider to be defamatory of you. That risk is enhanced in circumstances where the publisher does not take swift steps to withdraw a libellous statement, unequivocally apologise or otherwise make amends.

While Fox eventually apologised directly to Seymour and Blake while giving evidence in the trial, that apology came far too late to save him from an adverse judgment in liability, damages and as per the usual rule for the losing party, costs.

For those on the receiving end of false allegations, amassing evidence of the extent of publication as well as the damaging impact of the libel on one's personal life, remain vital steps for substantiating the serious harm test under the Defamation Act 2013.