CA-2024-001499 - [2025] EWCA Civ 1321

The allegation was “intrinsically ... exceptionally grave and cruel”. Mr Fox’s tweets had been held to mean that the claimants had or were likely to have engaged in sexual acts involving children, such acts amounting to serious crimes. It was hard to think of a more grave allegation. As Bean J observed in Cooke v MGN Ltd [2015] 1 WLR 895 [43], “being ... a paedophile” is the sort of allegation where “the likelihood of serious harm is plain ...”

This was a mass publication case. Mr Fox had a very large Twitter following of something like a quarter of a million. The allegation had also been “picked up and discussed” in the national print/online and broadcast media and widely discussed on social media. Although the tweets had been deleted within the day it was improbable in the circumstances that this did much to lessen their reach or impact. The claimants had retweeted Mr Fox’s accusation and “cannot complain of reputational harm caused by their own republication of the material they complain of”. But the evidence showed that independently of that, the accusations had been disseminated and become a national news story in their own right.

The situation of these two claimants made them particularly vulnerable to an accusation of this kind for three reasons. First, both were gay men with a public profile as such. The “persistent homophobic trope of equivalence, or at least connection, between being a gay man and being a likely paedophile” was “the petrol-sodden reputational rag onto which Mr Fox’s incendiary tweets landed.” Second, both had worked with children and had roles which depended on trust. Third, each claimant shared a name with a convicted child sex offender such that online searches would have turned up records of those convictions. The judge added that there was “no suggestion whatever that either claimant had himself previously done or said anything remotely capable of justifiably casting the shadow of paedophilia on himself.”

The judge rejected Mr Fox’s submission that the post-publication responses of third parties showed that “the seriously harmful potential” of his tweets was not in fact realised because many readers did not take the allegation seriously or did not believe it. There were tweets hostile to the claimants which evidenced “an underlying fire” which Mr Fox had lit or contributed to. She had “not been given sufficient reason ... to find enough apparent or likely scepticism” among the readership. There were some supportive tweets, and a statement by the CEO of Stonewall expressing solidarity with Mr Blake and denouncing Mr Fox. This showed that “in these quarters at least, the calumny was clearly not believed”. But the fact that Stonewall made this statement “does say something about the probable reputational impact they considered it necessary to counteract.”

The judge rejected Mr Fox’s submission that little weight should be given to “the happenstance” that each claimant turned out to have a paedophile namesake. A quick online search would have produced an “ostensibly corroborative result” and this was “indicative of a degree of probable seriously harmful impact”.

The judge accepted that in addition to deleting his tweets Mr Fox had taken “a number of steps to limit the impact of his allegations”. But she said he had not withdrawn the allegations or made “unambiguous clarification of their complete baselessness”. Instead, his tweets had “foregrounded” his own grievance at having been called a racist and falsely suggested that all the allegations were “equally baseless”. The allegations were not in fact equivalent and, in context, readers were not likely to have seen them as such. The claimants had expressed opinions about Mr Fox. He, a person with a reputation for saying “attention-grabbing and controversial things with a view to being taken entirely seriously”, had singled out three individuals for the imputation of paedophilia.

The judge gave little weight, also, to Mr Fox’s argument that a “settled narrative” had swiftly developed in the mainstream media that the claimants were innocent of the charge against them. She accepted that national media reports had, almost without exception, “looked askance” on the parties’ exchanges. But the press had reported the paedophile allegations neutrally; they had not reported them as untrue. “To the extent that the public was being encouraged by the edited (and lawyered) media to think Mr Fox had made an error of judgment, or even a poor joke, in his response, that is not inconsistent with a conclusion that he had made a regrettable, and effectively damaging, smear.”

The judge concluded that the Lachaux factors raised a “strong prima facie case”. There was an “absence of evidence for any alternative sources” of reputational harm. There was “evidence of actual harm by way of igniting online abuse and prompting counter-measures”. These matters weighed heavily on one side of the balance and were not outweighed or neutralised by the limiting factors on the other side.