From tweet to trial: Blake v Fox

The dispute stems from a 2020 exchange on X (formerly Twitter). Mr Fox posted a tweet calling for a boycott of Sainsburys after it announced it would be celebrating Black History Month. Mr Blake, Mr Seymour and Ms Thorp responded to Mr Fox’s tweets calling him a racist, to which Mr Fox responded by calling them paedophiles.

Blake, Seymour and Thorp issued libel proceedings against Mr Fox, which Mr Fox defended and counterclaimed over the racism allegations. This case has now been through both the High Court and the Court of Appeal.

The Threshold Question: Serious Harm^[2]

This case deals with one of the core elements that need to be proved in order to bring a defamation claim: has there been serious harm to the individual’s reputation^[3]?

High Court^[4]

Thorp’s claim against Fox 

Thorp’s claim was dismissed at the High Court on the basis that Fox’s tweet about her was an obvious use of parody, based on Thorp’s initial tweet, and therefore did not cause serious harm. For context, the tweets were as follows:

Thorp’s tweet: “Any company giving future employment to Laurence Fox, or providing him with a platform, does so with the complete knowledge that he is unequivocally, publicly and undeniably a racist. And they should probably re-read their own statements of ‘solidarity’ with the black community”

Fox’s tweet: “Hey @nicolathorp Any company giving future employment to Nicola Thorpe [sic] or providing her with a platform does so with the complete knowledge that she is unequivocally, publicly and undeniably a paedophile.”

Fox’s claims against Thorp, Seymour and Blake

Fox’s claims against Thorp, Seymour and Blake were also dismissed at the High Court on the basis that their tweets did not cause serious harm to his reputation. Of relevance:

• The judge considered third party publications and specific incidents that took place prior to the tweets. He held that those incidents were evidence that Mr Fox had a general bad reputation as a racist, and therefore the tweets could not cause serious harm to his reputation (as it was already bad).
• The judge considered that expressions of opinion made by the claimants, which were part of an ongoing debate about what racism is, were less likely to damage Mr Fox’s reputation than factual statements.

Blake and Seymour’s claims against Fox 

It was found that Mr Fox’s tweet had caused or was likely to cause serious harm to Blake and Seymour’s reputations. Of relevance were the following factors:

• Allegations of paedophilia are inherently serious.
• Mr Fox had a large social media following and his tweets were likely to reach a large audience.
• Blake and Seymour were both openly gay men (this case unfolded against a backdrop of longstanding, harmful rhetoric that falsely associates gay men with paedophilia).
• Both worked closely with children (and therefore allegations of paedophilia would be hugely detrimental to their careers).
• Coincidentally both Blake and Seymour shared names with convicted paedophiles which was likely to come up on an internet search.  
• Their reputations were previously “pristine”.

Court of appeal

Thorp’s claim against Fox

The Court of Appeal agreed that the tweet about Thorp was obviously parody and as such her appeal was dismissed.  

Blake and Seymour’s claim against Fox

The appeal against the findings on Blake and Seymour were dismissed. It was, however, found that the damages awarded (£90,000 each) were too high, not least because Mr Fox had publicly apologised for the tweets. The damages were reduced to £45,000 each.

Mr Fox’s appeal against Thorp, Blake and Seymour

The Court of Appeal allowed Mr Fox’s appeal. It held that:

Third party publications. The judge had erred in its approach towards the third-party publications. At no point had the claimants argued that Mr Fox had a bad reputation, and as such the judge was not entitled to infer one. The judge cited the rule in Dingle^[5] which prohibits reliance on third party publications to evidence a general bad reputation.

Tweets as expressions of opinion. The Court agreed with the High Court decision, i.e. opinions could be considered less harmful than factual statements. The judge further found that each of the claimants’ tweets could and did cause serious harm to Mr Fox’s reputation, contrary to the High Court’s findings.

Reputation. The High Court judge considered damage to Mr Fox’s reputation in his career together with general harm to his reputation. The Court of Appeal held that damage to career reputation was a distinct issue that should have been considered separately.

Causation. The High Court judge had applied the wrong causation test. They asked whether the tweets were the dominant or sole cause of harm. The correct test was to assess whether they made a material contribution to the harm.

“Material Contribution” Test. The Court of Appeal confirmed the correct causation test is whether the publication made a material contribution to the harm, not whether it was the dominant or sole cause.

What Next?

Fox’s counterclaim has now been remitted back to the High Court for a retrial. Now that he has satisfied the serious harm threshold, the retrial will now consider (a) the truth defence (i.e. is it true that Fox is a racist), and (2) the defence of honest opinion (i.e. whether Thorp, Blake and Seymour’s comments should be deemed honest opinions which were based on the facts available to them).

^[2] Please note that this article does not address the Defences that were brought by the parties.

^[3] Section 1(1) Defamation Act 2013.

^[4] [2024] EWHC 146 (KB)

^[5] Dingle v Associated Newspapers Ltd [1964] AC 371