Not So Fantastic Mr Fox

It’s a tale as old as time. An actor in a High Court defamation battle against a drag performer… on reflection perhaps this story does have a very 2020s feel about it.

The actor in question – one time on-screen assistant to the BBC’s Lewis and unsuccessful candidate for both Mayor of London and MP for Boris Johnson’s vacated constituency Laurence Fox, has been embroiled in a defamation claim brought by Simon Blake (a former trustee of LGBT+ charity “Stonewall”) and drag performer Crystal.

The claim centres around tweets by Fox which alleged that Blake and Crystal were paedophiles. Fox counterclaimed that the two (as well as actress and broadcaster Nicola Thorpe) had defamed him by branding him a racist. In a judgment this week, Mrs Justice Collins Rice upheld the Claimants’ claims and dismissed Fox’s counterclaim.

A statement will be defamatory (broadly speaking) where it damages the reputation of the subject in the minds of society generally. The statement must cause serious harm (a threshold added by the Defamation Act 2013) in order to be actionable. In finding for Blake and Crystal, the judge found that the statements by Fox were “harmful, defamatory and baseless”. The comments were said to make Crystal feel less safe performing as a drag act and were described by Blake as “a trope as old as the hills”.

As to Fox’s counterclaim, the judge declined to make a ruling on whether the allegation that Fox was a racist was “substantially true” (which would have provided Blake and Crystal with a defence), finding instead that the tweets in question were unlikely to cause serious harm to Fox’s reputation. Fox has, previously, tweeted an image of a swastika made up of rainbow “pride” flags, a move which has been condemned by the Holocaust Memorial Day Trust and the Campaign against Antisemitism and resulted in him being temporarily banned from twitter (now “X”).

Fox now says he will appeal the decision on the counterclaim, claiming that a decision is needed on a meaning of the word racist. Whether such an appeal gets off the ground remains to be seen. Courts at appeal level do not take on cases simply because there is an interesting point to be determined if that point will not have a bearing on the outcome of the case. Fox would have to show that the judge at first instance was wrong about serious harm in order to test whether he is, in fact, a racist.

It is interesting to compare this case to another involving similar allegations penned on twitter by its now owner Elon Musk. Musk avoided liability in that case, running what became known as a “JDART” defence. Mr Musk said that his tweet (calling a British diver involved in the rescue of the Thai football team stuck in a cave a “pedo guy”) was a Joke which was badly received, that he had Deleted the tweet, Apologised, and then engaged in Responsive Tweets to move the matter forward.

Whilst, at the time of writing, the JDART defence has not been rigorously tested in English courts on a very basic level adopting this approach is likely to mitigate against a claim. A post on Crystal’s X profile states:

I want to say again that I took no joy in bringing this case, nor did I do so lightly. Mr Fox could have made this go away very early on with a meaningful apology and settlement.

Although the tweets have since been deleted, the absence of an apology appears to have weight on the Claimants’ decision to bring the claim, if nothing else. This case stands as a reminder to be careful of what you say online. Fox’s defence that the statements were merely “meaningless and baseless insults” exchanged in an argument (perhaps unsurprisingly) found little favour with the Court.

We will have to wait and see whether Fox is able to successfully overturn the decision regarding his counterclaim and (more broadly) whether any of this has an impact on his political aspirations. Events on the other side of the pond suggest that fighting, and losing, defamation claims is not always a bar to political success.

Note: The contents of this article are for general information only and do not constitute legal advice. Specific legal advice should be taken in any particular circumstance.