The Court of Appeal has overturned a decision of the High Court which held that a number of tweets calling the actor-turned-political figure, Laurence Fox, racist did not cause serious harm to his reputation. The judgment is an important clarification of the law as it relates to questions of serious harm and causation, and reaffirms the importance of the rule in Dingle v Associated Newspapers [1964] AC 371 (Dingle).

We commented previously on the case at the High Court in our Media Law Update here. In short, the three claimants separately tweeted that Mr Fox was racist after he posted a tweet in October 2020 saying that a supermarket’s Black History Month campaign promoted “racial segregation and discrimination”. Mr Fox responded with tweets calling the three individuals paedophiles. The individuals brought a libel action against Mr Fox for these tweets, and Mr Fox counterclaimed for libel in respect of the claimants’ initial tweets.

In relation to Mr Fox’s counterclaim, the Court was unpersuaded that the three tweets calling him racist caused, or were likely to cause, serious harm to his reputation, as required by s.1(1) Defamation Act 2013. Whilst Mrs Justice Collins Rice acknowledged the “inherent gravity of the ‘racism’ allegations”, she stated that they were “tempered” by the context of Mr Fox not being shy from courting controversy in this area. Therefore, she was not persuaded that the serious harm that Mr Fox claimed to have suffered as a result of the tweets (including being dropped by his agent) was indeed caused by the tweets themselves. Instead, she explained that “there are very many alternative explanations or sources of causative negative impact on Mr Fox’s reputation in general in the matter of racism, and on his career in particular – his own stimulation of controversy, the hostile views of the profession, the pandemic, his diversion into a political career, and the sheer number of other people who had joined in the debate he had publicly stimulated and taken public exception to his pronouncements as being racist”.

As for Mr Fox’s own tweets calling the claimants paedophiles, the judge was clear that it was an “exceptionally grave and cruel allegation” which did cause or was likely to cause serious harm to the respective reputations of the claimants. She further found against Mr Fox in his argument that his statements fell within the ‘reply to attack’ qualified privilege and so – in the case of two of the claimants – held him liable to pay each £90,000.

Mr Fox advanced two mains ground of appeal. First, he claimed that the judge had erred in law on her approach to serious harm, arguing that (a) she was wrong to treat the tweets complained of as inherently less likely to cause serious harm to his reputation because they were expressions of opinion, (b) she failed to apply the law on proving bad reputation and (c) in particular, she failed to apply the rule in Dingle, namely that evidence of other publications making the same allegation as the statement complained of is inadmissible as proof of a pre-existing bad reputation. Mr Fox’s second ground of appeal was that it was not open to the judge to find that the claimants’ tweets were not causative of serious harm to his reputation.

Turning to what the judgment refers to as ground 1(a), Lord Justice Warby held that the judge was entitled to find that an expression of opinion may, depending on the context, have a less harmful impact on a person’s reputation than a simple statement of fact to the same effect. She was also entitled to take into account whether the nature of the statements, their context, and their sources mitigated their harmful impact, pointing to the difference between arguments about a controversial subject aired on social media and an authoritative finding of fact arrived at by an academic. Whilst Warby LJ noted that “some criticisms can be made of the judge’s reasoning” on this point, it was not sufficient to warrant the Court of Appeal overturning her ruling.

The same could not be said of grounds 1(b) and (c) which related to proving bad reputation and the rule in Dingle. In the Court of Appeal’s view, the judge was wrong to conflate the issue of general reputational harm to Mr Fox with a separate limb of his case that related to his contention that the claimants’ tweets had destroyed his career. As Warby LJ put it, “his contention that the claimants’ tweets had destroyed or damaged his career had a connection with his claim that he had suffered general reputational harm; it was relied on to illustrate and support that claim. But it was a separate, distinct and narrower strand of his case, and it raised different issues which needed to be analysed separately”.

On the narrower point of the effect of the tweets causing damage to his career, Mr Fox had relied on specific events to prove his case. In response, the claimants had pointed to other potential causes such as damaging third party publications and Mr Fox’s own controversial behaviour. As Warby LJ explained, they were entitled to do so to rebut Mr Fox’s case on causation, and the judge was entitled to take these matters into account when determining if the claimants’ tweets had caused his career to be damaged.

However, in conflating this narrower question with the broader question of whether Mr Fox had suffered general reputational harm, Warby LJ explained that the judge “made no finding as to the state of Mr Fox’s post-publication reputation generally. Instead she asked herself whether, if Mr Fox had a reputation for being a racist, that reputation had been shown to result from the tweets of which he complained. She then identified and considered a range of other factors that might have caused or contributed to reputational harm of that kind and concluded that Mr Fox had not proved that any harm was not caused by these other factors (or not to a degree that was serious). Among the factors the judge relied on were the inferred reputational consequences of previous third-party publications to the same effect as the alleged libels. I find this an unsatisfactory reasoning process. And I am unable to see how it can be reconciled with the authorities”.

Continuing with his criticism, Warby LJ was not persuaded that the process that was undertaken by the judge was an exercise in ‘isolating’ the damage caused by the alleged libel. As he explained, the notion of ‘isolation’ – as articulated by the House of Lords in Dingle – allows for relying on third party publications to rebut a claim that specific consequences have flowed from the publication complained of. However, Warby LJ was clear that “the House of Lords were not using the concept of “isolation” to embrace a process of identifying earlier third-party publications as candidate causes of reputational harm, inferring that they did indeed operate in that way, and moving from that finding to the conclusion that the claimant had an existing bad reputation so that the publication complained of was less reputationally harmful. That is not something covered by the notion of “isolation”. It is, in my opinion, a line of reasoning unequivocally prohibited by Dingle, Lachaux and Mueen-Uddin. Yet it is one that the judge adopted here”.

Therefore, the Court upheld Mr Fox’s appeal under grounds 1(b) and (c). It also followed that his appeal was successful in relation to the second ground as Warby LJ explained that “the only conclusion reasonably available to the judge was that the publication of each of the claimants’ tweets did cause serious harm to Mr Fox’s reputation generally”.

His judgment also addressed Mrs Justice Collins Rice’s findings in respect of Mr Fox’s claim that the tweets were causative of his agent dropping him, effectively ending his acting career. He notes that her terminology was “variable and inconsistent” on this subject, oscillating between her asking whether the claimants’ tweets were the dominant cause of the harm in question or the sole and exclusive cause. In Warby LJ’s view, this was not a question of semantics, but indicated that the judge’s conclusions on causation were flawed “because they did not turn, as they should have done, on whether the offending statements made a material contribution to the specific heads of harm under consideration. That was an error of law”.

Separately, the Court of Appeal reduced the size of the award to the two claimants by half, finding that, although substantial awards were appropriate, those of £90,000 were “considerably in excess of what was necessary in this case”. Warby LJ explained that “damages should have been assessed in respect of Mr Fox’s publication to his own followers and not any media republication. The assessment should have been carried out on the footing that upon first reading his tweets Mr Fox’s followers generally understood them to bear the single meaning identified by the court; that many took them seriously; and that they therefore caused serious harm at the time of publication. But that initial harm was substantially reduced by the steps that Mr Fox himself took on 4, 5 and 13 October 2020 [when he took down the posts and tweeted an explanation], as well as by the way the matter was reported in the media over that same period. These conclusions, critically, reduce the size of the award required to achieve full and adequate vindication of the claimants’ reputations”.

The case will now be remitted to the High Court for a re-trial on the issues of honest opinion and truth.