For Fox sake

Like all the silliest legal battles, these defamation cases were fought over a series of tweets relating to Sainsbury’s marking of Black History Month in 2020. Because the supermarket was making “safe spaces” available to black employees to discuss their experiences of racism, Fox accused the supermarket of engaging in segregation, and called for a boycott.

Seeing Fox call for a boycott of Sainsbury’s over its Black History Month activities, former Stonewall trustee Simon Blake and drag queen Colin Seymour (better known as Crystal) sent tweets calling Fox a racist. In return, Fox called both men paedophiles.

Fox deleted the tweets and did a partial retraction in the following days, but this was not enough to prevent the two men launching lawsuits, at which point Fox counter-sued both. There were also claims and counter-claims relating to tweets from the actor and campaigner Nicola Thorp, which won’t be addressed here as the case is complicated enough already.

So, can you call anyone a racist now?

To cut a long story short, no – “racist” still has a meaning in UK law, is still defamatory, and calling someone racist could still lead to you losing a libel case (which would likely cost you hundreds of thousands of pounds). It would not even specifically be safe to call Laurence Fox a racist – in different circumstances, he could still sue over this, and could potentially win.

In defamation cases, there are certain hurdles you have to jump at different stages. Quite early on, a judge rules on the “ordinary” meaning of your comments – which becomes the interpretation you have to defend – and whether or not that meaning is defamatory at common law.

That simply means whether that meaning would be likely to cause you reputational damage, or financial damage. Being called a racist could cause you reputational damage, and so (predictably enough) Fox successfully cleared this hurdle, meaning the issue came to a full trial.

There are two main stages to a full trial: the first is that the claimant (in this case, Fox) has to show that the posts concerned weren’t just defamatory, but that they caused “serious harm”. The defendants then have a chance to offer up defences even if it did cause serious harm – these can include that the defamatory meaning is true (in other words, the court rules that the defendant is a racist) or that it is an honestly-held opinion.

Fox’s case fell down at the “serious harm” hurdle. Fox tried to claim he had lost representation by his agent over the specific tweets from Blake and Seymour, but cited very little specific evidence to support that it was those tweets rather than his general reputation and activities that caused this.

With that specific harm disregarded, the judge found little to suggest those specific tweets had done material reputational harm to Fox, noting in the ruling that Fox himself often throws around the accusation that people or organisations are racist.

Because the judge ruled that Fox hadn’t passed the “serious harm” test, there was no ruling on whether the other defences would have succeeded or not – courts tend to avoid ruling on things upon which they do not have to rule.

So far, Laurence Fox has failed in his bid to sue Blake and Seymour, and so becomes liable for their legal costs. It then gets worse.

Don’t randomly call people paedophiles

At first glance, Laurence Fox’s responses to Blake and Seymour looked deeply bizarre – he essentially responded to both men with something on the lines of “says the paedophile”. This, Fox argued (plausibly), was intended as a caustic but sarcastic retort making a point about throwing around accusations like calling someone a racist – essentially picking the worst accusation someone could make.

Fox did not make that point at any great length in the original posts, though, and the judge summarised evidence showing that both men concerned and people they knew thought it was a sincere accusation. The judge also noted that there is a long and grim history of people eliding gay men with paedophiles, and that this was particularly damaging to these two men, both of whom sometimes work with children.

There was also an extraordinary coincidence in that both Blake and Seymour share their names with convicted child sex offenders – which the judge noted meant that people seeing Fox’s tweet and doing a casual google might come to drastically wrong and damaging conclusions.

These allegations obviously sailed through the common law defamation, and the only mitigation at the “serious harm” threshold was Fox’s deletion and partial retraction of his posts – but the judge ruled these fell far short of being a prompt deletion and full apology/retraction. The claims were, unsurprisingly, found to have caused both men serious harm.

That left Fox with very little room left to manoeuvre: his defence team could not try to offer either a truth defence or an honest opinion defence, as the latter relies on demonstrating a sincere belief on the poster’s behalf that the defamatory statement is in their opinion the case.

That left him with very few options. His lawyers tried to argue that his posts alleging paedophilia were necessary to defend himself against the allegedly defamatory tweets calling him a racist. To almost no-one’s surprise, these arguments weren’t successful.

As a result, Blake and Seymour succeeded in suing Fox, and he will have to pay both men damages (to be determined later), as well as their costs.

The case is a triumph for Blake and Seymour, but a disappointment for others. Clearly, people on the social network formerly known as Twitter had been hoping for a ruling that would mean they could call Fox a racist with impunity – and this ruling doesn’t do that.

Fox, now he’s going to have to hand over hundreds of thousands of pounds, is trying to get a morsel out of the ruling, by saying it has in some way devalued the idea of racism or somehow made the accusation of racism immune to libel. On that, he’s disappointed too – and for him, that’s going to be one very expensive disappointment indeed.