Blake v Fox - Court of Appeal

[Music] Hello and welcome to the immediate law podcast. Collette Antwom, our hair today to take you through the recent court of appeal judgment, handed down on the 17th of October 2025 in Blake and Fox. [Music] A reminder for any listeners who aren't familiar with this case. It concerned a series of tweets made after the actor Lawrence Fox advocated for a boycott of St. Breese social media for its policy of offering a safe space to black members of staff during black history month. In response, the three claimants tweeted that Fox was a racist and Fox replied calling each of them a pedophile. A few days later Fox apologized in a separate tweet for the way he reacted and admitted that on reflection he could have handled the exchange in a wiser and more reflective way. The claimants nevertheless sued for defamation on the pedophile assertions and Fox counterclaimed on the racism assertion. At first instance Mrs Justice Collins Rice dismissed Fox's counterclaims ruling that the defendant had failed to prove any of the racist tweets caused or were likely to cause serious harm to his reputation. The high court awarded two of the claimants Blake and Seymour, downed just £90,000 each rejecting Fox's defense that his tweets had not caused serious reputational harm or that they were alternatively privileged statements made in self-defense of his reputation. The court found that the allegations that Blake and Seymour were pedophiles to be a gross, groundless and indefensible liable with distressing and harmful real world consequences for them. The third claim of thought had her claim dismissed before trial on the basis that it had not caused serious harm to her reputation. The appellant has successfully advanced two grounds of appeal, first that the judge erred in law in her approach to his case on serious harm, and second that it was not open to the judge to find that the claimants tweets did not cause serious harm. Delivering the leading judgement of the Court of Appeal, Lord Justice will be held that the high court wrongly conflated the issue of general harm to the defendant's reputation with the distinct claim that the claimants tweets had caused damage to his career when each required separate analysis. The high court judgement violated the rule and dingo by inferring that the defendant had acquired a bad reputation from previous third party publications and had misapplied the causation test for determining whether the tweets damaged the defendant's career. In respect of the second ground of appeal, Lord Justice will be held that the serious harm requirement was clearly satisfied in respect of each claimants tweets, noting that the defendant did not admit and the claimants had not pleaded that Mr Foxx already had a reputation as a racist and the further circulation of the tweets by the defendant did not undermine his case. The Court of Appeal set aside the high court order dismissing the defendant's claim and remitting the claim back to the high court for retrial. In respect of the claimants claims, the Court of Appeal upheld liability but reduced the damages awards to £45,000 each, holding that the high court had not accounted for the defendant's miscarry efforts through his apology tweets. Whilst Blake and Seymour's claim has now concluded, Foxx's counter claim has been remitted back to the high court for retrial and the question of serious harm having the resultant Foxx's favour means that two issues are now left for trial. The first, whether it's substantially true that Foxx is a racist and the second, whether Blake and Seymour's tweets amounted to honest opinion. While Blake and Seymour need only establish one of the two defences, the third defendant's thought is unable to advance an honest opinion defense because the earlier litigation it was found that her tweet did not indicate the basis of her opinion, which is a requirement of the honest opinion defense. Therefore, assuming the claim against the Alpazot Settle before trial, a judicial determined will need to be made on whether Foxx is a racist or not. So this continues having thought that we'd wrapped it up and having covered it in previous newscasts. I want to just get your initial thoughts on Lord Justice Walby's reasoning here and the change in position from the Court of Appeal. So I've been thinking about this judgment quite a lot over the last 24 hours or so. And I have some difficulties with it. So what I'm going to share are my initial thoughts, lines of critique that have occurred to me while I have been reading the judgment and thinking about it. I would not be surprised if there are counters and rebuttals to the points that I'm going to make that I haven't thought of yet. But it seems to me that there are some problematic features in this judgment. So let's start with a big picture, which is to do with section one and how the serious harm requirement is interpreted. At first instance, as you've helpedfully laid out there, Collette, the trial judge determined that there was no serious harm caused to Foxx's reputation by the tweets alleging he was a racist. Because of things he had himself said in the public domain on prior occasions that might plausibly be interpreted as racist in nature. Thus, if his reputation had suffered any serious harm due to allegations of racism, he had essentially brought that upon himself. Now, the trial judge did not refer to the case of Dingle in that judgment and that seems to have been a problem and it is something upon which the Court of Appeal and the Judgment of Lord Justice will be focuses. The Dingle case for anyone who's not familiar is a House of Lords case from 1964. It involved the daily mail making an allegation that repeated an allegation in a parliamentary report but adding its own spice to the story. And a rule comes out of Dingle, which is that the defendant in a libel action may not abuse evidence of statements made by third parties in order to mitigate the damage that has been caused. Why not? Because each defendant is responsible for their own libel and the harm that their own words causes. Now, in Blake and Foxx, Lord Justice Warby talks about a standard of causation known as material contribution. And I'm going to quote him here. He says, "The claimant by which he means the counter claimant in his case, Foxx, does not need to show that the publication complained of was the sole or dominant cause of what happened, but he must show on the balance of probabilities that it was a material cause. This reflects the general law of causation in taught." Now, this language reflects the test for causation known as material contribution. And it is one that will be familiar to negligence lawyers, though it might not be so familiar to media lawyers, other than vague memory from law school. It's a test for causation that originates in a case called Bonninton Castings in 1956. And there's a line of authority that follows it, cases like McGee, Fairchild, C.N.K.Vitch, familiar to negligence lawyers. What is it all about? Well, these cases concern physiological harms of different sorts, but usually industrial diseases, that are caused by a single agent to which the claimant has been exposed by numerous taught visas or innocent causes over a period of time. Such that it is impossible medically to determine which exposure caused the harm. We call this inseparable harm. Now, the problem with inseparable harms, where you have multiple possible causes of that harm, is it is not possible to show on the balance of probabilities that any single cause is the operative cause. So you can't show and let's just do crude figure-based version of this. Let's say balance of probabilities can be represented by a 51 to 49 split. If you can show 51% likelihood of something you've shown on a balance of probabilities it is likely and thus you can win your case. But if you have multiple possible causes you can't tell which of them caused the damage then you're never going to get anywhere near 51%. The best you can do is to show that a cause was a material contribution to the damage that you suffered. So that might be that you show it was likely to have been 20% responsible for what happened. Now in those circumstances the courts and negligence cases have allowed causation to be deemed satisfied not with understanding that on the balance of probabilities you haven't actually shown that. The language that Lord Justice Warby uses when he says the claimant must show on the balance of probabilities that the statement was a material cause is technically accurate in that the claimant in such a case would have to show on balance of probabilities a material contribution but that is not the same as proving causation on the balance of probabilities and thus the language is misleading. One proves causation on the balance of probabilities only via the but four test which gives you 51 49. Anything less than that you have a much lower evidential standard that needs to be reached. Why am I talking then about all this negligence stuff? Well because the language that Lord Justice Warby is using tells me that what he has in mind when he says this reflects the general law of causation and taught is the material contribution test and it's also misleading to say that it reflects the general law of causation and taught because the material contribution test is an exception to the general test for causation which is the but four test. It applies only in very limited circumstances where one has inseparable harm. Now the House of Lords and the Supreme Court have never ruled that reputational harm is inseparable in nature but that is implicitly what the Court of Appeal is saying here that reputational harm is inseparable and because it is inseparable the material contribution test can apply. If it was not inseparable the material contribution test couldn't apply because the only circumstance in which it is permitted to apply. So the harm must be now regarded as inseparable and that is odd because in Dingo it isn't. In the Dingo case it's very clear that the House of Lords sees the different statements by different parties at different times as contributing separately to the harm that is caused and thus liability can be apportioned between them. One can only apportion liability where one can separate the harm. Right. What does this mean? Well it means that if we're adopting the material contribution test the point in negligence law is that with material contribution if you can find one taught phaser who materially contributed to the harm that you suffer even if you couldn't show that it was likely them that caused all of it you can show material contribution you are permitted to recover the entirety of your damages from that one defendant even though the standard of proof has been lowered. Now that some might think if you're hearing about this for the first time sounds wildly unjust. What it is is exceptional. It's exceptional because of the gravity of the harm that is suffered and the circumstances in which it happens but you'd be absolutely right this is not the normal state of affairs it applies only in limited circumstances. So there's a conceptual shift that has happened without really being explored in detail in this judgment. Reputational harm is now being regarded as inseparable and I think it's not worthy first of all and this is the first point that I'm making that the Dingo case does not authorize that does not deal with causation there's no mention of causation in Dingo there is no mention of material contribution in Dingo. I know I've looked it up I read the whole thing and it's not there. So there's no direct authorization from the House of Lords to affect that conceptual change yet that is what has happened. Now second point take a step back a little bit and think about where this sits historically. Deformation as a body of law is much older than negligence. Negligence law in its current form which really is the only form in which it's existed as a tort of general application since the recognition of a general duty of care test has existed since the 1930s. Deformation law you can trace back in some form or other to at least the Middle Ages it's a good thousand years older than negligence law and in something that is plausibly approximate to its current form, deformation law can be traced back without difficulty to the 18th century. So you're talking about a body of law that in essentially its modern guys has been in existence for between a hundred and a hundred and fifty years longer than negligence law and in all that time it was never necessary to conceptualize reputational harm as inseparable. So it strikes me as at least odd if not potentially unsound in principle to now say that reputational harm has to be considered inseparable such that it requires a different test of causation. I can't see what the justification for that is when one looks at the history of these two causes of action. Third point. One of the reasons why material contribution is acceptable in negligence even though it lowers the standard of proof and thus potentially holds a person or a company liable for harm that we could not normally prove that they have caused and for the entirety of the harm even if others may have caused significantly more of it is the availability of a very particular defense and that is the defense of contributory negligence. If the defendant in a negligence case who has been found to have materially contributed to the claimant's injury can show that the claimant themselves through lack of care for their own well-being also contributed to their own injury the damages can and will be reduced to reflect that. So it's entirely possible that a defendant who let's play with the figures again could only be shown to be about 25% responsible for what had happened would only be liable for 25% of the damage if the other 75% were attributable to the claimant. There is no equivalent defense in defamation. Instead and quite helpful the Court of Appeal Judgment goes into some detail on this there are much narrower rules around mitigating damage through the actions of the claimant themselves. The Burstein rule for example is limited to circumstances in which the claimant themselves did something that provoked the defendant's statement. Evidence can be reduced of actions that provoke the statement by the claimant and that will mitigate damages but not the introduction it seems. Simply of statement that have been put out there in the past by the claimant that might contribute to the loss of reputation in the general area that we're talking about. That would be contributory negligence but it has been held repeatedly and quite correctly according to the statute that there is no defense of contributory negligence and defamation. Now I'm not suggesting that there ought to be but what I am saying is that the defense of contributory negligence provides a safety net that makes the use of the lowered standard of proof that we get the with material contribution being the causation test, defensible. If one does not have access to that defense, then the material contribution approach to causation becomes exceptionally harsh on defendants because there is simply no way to avoid the liability other than in very narrow circumstances. And in the social media range, where people spout a lot of stuff, a whole lot of evidences then simply ruled out on the basis of the Dingo rule. It's third party content, it's not relevant. So there was perhaps an opportunity to rethink how one interprets the Dingo rule that has been passed up here. I'll make one more point if I may collect, and then perhaps we can discuss 'cause I'm conscious that I've been monologuing for a while here, but I have a lot to say. The last point that I'll make on this is that again, if one takes another step back and considers more widely what the law is doing in this area. The Deformation Act of 2013, and particularly Section 1 had a very particular purpose. It was in the words of Lord Justice Warby himself, intended to make the claimants task harder. Well, that's not how it's been interpreted here. The practical impact of this decision is to make the claimants task a person like Fox, his task vastly easier, because the material contribution tests lowers the evidential standard required at a conceptual level and at a practical level. And the lack of a contributory negligence defense makes it basically indefensible for the claimant. They can't get around Section 1 when causation is given that interpretation. Makes life enormously difficult for defendants. And I think the question needs to be asked, is this in the spirit of the statute? Is this in the spirit of more freedom of expression, which was the point of the Deformation Act of 2013? And the courts have repeatedly held that to have been the case. Lord Justice Warby himself, in the first instance in the La Show case, gave a judgment upheld by the Supreme Court, which I've written about myself, and I've spoken about myself, and I think he was absolutely right, because he recognized that Parliament intended to raise the bar for bringing the affirmation claims. Now, one might argue that the Court of Appeal felt bound by Dingell, which is a House of Lords authority, and that it could not alter the ruling in Dingell, had to defer to it and any alteration to it, would be for the Supreme Court to make. I think there was an opportunity to reinterpret Dingell, because the Deformation Act of 2013, when it uses the term caused, as in caused stereotypes, or more likely to cause stereotypes, invites interpretation. And one could have taken a different view of what caused means in those circumstances, and the one that the Court of Appeal ends up taking. And for that reason, I would hope that we get a Supreme Court ruling on this. I think it's a case that warrants appeal to the Supreme Court to clarify this point. Whether the current iteration of the Supreme Court has the requisite doctrinal specialists to provide the level of detailed analysis and clarity that we need on this particular point, I don't know, I hope it does. I hope they feel they're in a position to do that, but I think we could do with that. So I hope that happens. - Assuming it doesn't go to the Supreme Court then, and we are left with this judgment as the kind of latest highest authority on online libel, what do you think the impact is going to be? Are you spoken a lot on essentially making, and what was meant to be an exception in negligence or something of a standard now in terms of how Twitter, libel cases, online libel cases are going to be dealt with. And I just want to get your thoughts on the kind of impact and ramifications for claimants in the online space and defendants. - Well, for the defendants, the online space has just become much more dangerous again. And I think there's a real problem here. I think there's a potentially enormous problem for defamation law, which is one of credibility. Law is effective because it has the popular consent of the people. It has to move with the times in order to retain that. And I think it's fair to say that over the last 10 to 15 years, the English courts have struggled somewhat with the impact of social media on their work, particularly in defamation. But I think that is now close to reaching a tipping point here. If one cannot point to previous tweets put out by individuals after an online spat, that demonstrates that there are other publications that might well have reduced their level of reputation in a particular area or in respect of a particular attribute, then we're just not dealing realistically with the material that everybody can see in front of them. To suggest that given the number of things that some people say that are of controversy and might paint them as being of this character or that character, including, for example, statements that might be interpreted as racist, might plausibly be interpreted as racist, that everybody on social media who follows these people can see, but to say that they have to be excluded from the analysis and we will only focus on two or three tweets that are the subject of that individual's particular complaint. Assists claimants, harms defendants' prospects of defending the claim, makes it much more difficult for people to express themselves online without constantly, for example, quote tweeting and retweeting and trying to make sure that at least you've got all of the components necessary for an opinion-based defense, which, of course, most members of the public don't know about. How many of ours, 65 plus million population have gone on Red Section 3 of the Deformation Act? Very few of them. You and I are in the fortunate position of knowing exactly what it says, but we're in the minority. I think the courts need urgently, and if the courts won't do it, Parliament may even have to step in, but the courts urgently need to rethink how they deal with the volume of publications and thus evidence that is available to an ordinary, reasonable reader on social media that impacts upon people's reputations. It is not a dissimilar point to the one that I made vociferously about Riley and Murray. It's in the same ballpark. I thought that was a case that didn't really get to grips with the reality of social media interactions. And I think this is another. But in so far as it backtracks from an interpretation of Section 1, at first instance, that I thought made perfect sense in the age in which we live, even if it might on its face look to be incompatible with the Dingo rule from 1964, which let's face it, is a case dealing with newspaper publications and didn't actually deal, as a point of distinction here, did not actually deal with a prior publications by the claimant, but by genuine third parties, which is relevant to the contributor negligence point that I made earlier, I just think that this paint's the information in a black ring light and a test its credibility with the public. - Yeah, I was, my next question was about distinguishing Dingo on the basis that it is, just, it's actually just a very different set of circumstances and whether there was that scope. - Yeah, I think, I mean, It's one of those where you could distinguish Dingle in an academic essay, but I think what's happened is that Dingle has been used so much so frequently by libel lawyers since then that a different more practical understanding. But an understanding of how it operates that is broader and rooted in practitioners' experience of how it is being used in courts has arisen and it's standing just for a general rule that there are suites of prior publications by a range of people, possibly including the claimant that just are not relevant. Where I think the problem is is just in having blanket statements that oh none of this stuff is relevant. Well it might be that plausible to have said in the 1960s that an older publication in an older edition of the newspaper that a few tens of thousands of people may or may not have looked at shouldn't be relevant to this case today. But when you're talking about social media posts that have been viewed by hundreds of thousands of people if not millions of people, they say and may well still be up and accessible and searchable and archive and very easy to find and you and I could find them in ten seconds and this is not dissimilar to a point that I made with Riley and Murray about the ready availability of searching for information when it came to the section three requirements. It just seems to me implausible to suggest that Dingle is a necessarily controlling authority on this in that restrictive interpretation of it and it's heightened it will revisit it. Moving on to the damages question because we got a big reduction there on the basis of the kind of mitigating attempts by Foxx with his apology tweets and the damages of 90,000 each were halved. We did talk about the 90,000 when we first covered this a couple of months back as being a particularly large award. What are your thoughts on the reduction? I broadly support reductions in damages awards for defamation because I think reputational harm is overvalued generally by English law. It drives up the cost of litigation. Makes it less practical for outlets and I'm thinking particularly of small media outlets rather than obnoxious individuals on Twitter but it makes it harder for certain outlets to defend claims if they think they might be facing a ruinous damages bill. The risk factor goes up so I broadly support reducing them. I do think that this starts to look a little bit odd and perhaps a degree more explanation is warranted for exactly the rationale for the reduction here. When one sets it alongside some other recent damages awards it seems a little strange. For example, the former First Minister of Northern Ireland, Arlene Foster, was not all that long ago awarded £125,000 in respect of an allegation on Twitter that she'd had an extra marital affair and thus committed adultery. To reduce the damages awards here to £45,000 each for an allegation to a person who's a pedophile. On the face of it it seems odd to suggest that calling someone a pedophile is three times less bad than calling them an adulterer. I think there are problems when one the court of appeal starts stepping in and reducing some damages awards but not all. Obviously, it can't reduce all of them. It can only reduce those that are brought before it but not all defendants can afford an appeal. It then privileges those that can afford to bring the case before the court of appeal and have the damages award reduced. As you say, there was an apology here. There wasn't in the Arlene Foster case. In this case, Fox took the tweets down after a matter of days. I think perhaps about a week in the Arlene Foster case. There was nearly three weeks that the tweets were still available online. Maybe the longevity there, three weeks is three times longer than one week. Maybe that explains it. The apology, though, that Fox offers wasn't really an apology. It wasn't a direct apology. What we said, it wasn't. I'm so terribly sorry I called you a pedophile. You are not a pedophile and I will never do it again. It was a much more generalist apology. A vague statement of regret for the way that I acted and I could have acted better. It doesn't, to me, strike me as the kind of thing that immediately gives me a reason to say, "Oh yes, your damages should be halved because it was such a great apology." I can't say I fully understand that but nonetheless, I am supportive of reducing damages because let me be clear, 125,000 pounds for Arlene Foster was manifestly ludicrous. To a large extent, I mean, that she was an adulterer. I can't see a reason to give more than 10% of that damages award. This one, I think, I think the idea that 45,000 pounds is sufficient to acknowledge the harm that is done and the fact that it was wrong. I think that's absolutely right. I want to see some consistency. Yeah, and there's also the fact that the publicity of trial always does much to mitigate the damage to reputation itself. These massive awards can be. It does. It would still be the ultimate remedy that we would assist here, which we still don't have, are directed apologies. If the court would just direct the defendant to publicly correct the record, we could do a lot more. That does happen in certain parts of the world. It's not here. Never has, probably never will. So the final thing that I want to talk about, assuming we don't go to the Supreme Court here, and it in fact just goes back to the trial judge for re-determining the question of the counterclaim. I want to get your thoughts on that question of whether whether Fox is racist and how a judge will. how you anticipate a judge will tackle this question, which appears to be a quite a difficult one to actually grapple with, especially where a truth defense would have to be run in Thorpe's case unless there is obviously a pretrial agreement and settlement. Absolutely. So at this point, I can remind readers that I wrote an article on exactly this point. If you are lucky enough to have access to the Journal of Media Law, and I believe the article is open access because I think my university paid for open access availability for the article. Journal of Media Law in 2023, I wrote an article on the opinion defense, in which I address points that are very much relevant to this. So really to be this breaks down to two questions, which is how should the courts deal with it and how will the courts deal with it. And you can possibly tell from my breaking it down to those two points that I think the answer to both are different. It is my view that an allegation that a person is racist can only be one of opinion because it is a value judgment. And for reasons of statutory interpretation that I think are quite straightforward, I don't think it matters that a person does not indicate the basis for their opinion in terms of determining that the statement is one of opinion. It matters for whether the defense can be made out that the opinion is defensible, but not for determining whether it is a statement of opinion, because sequentially in section three of the Deformation Act, the consideration of whether the defendant has set out in specific or general terms the basis for the opinion comes after the determination that the statement is one of opinion. And sequence matters, Parliament thinks this stuff through. So I think any assertion of racism has to be regarded as a statement of opinion, that doesn't necessarily mean it's a defensible statement of opinion. If the other requirements in section three are not made out, but it ought to be regarded as a statement of opinion because it is a value judgment about a person's beliefs. It is I think of a fundamentally different nature to calling a person a pedophile. To say that a person is sexually attracted to children speaks to their nature. To say that a person holds a view that some races are less desirable than others speaks to a person's choice to believe a person particular thing politically, socially, morally. But I think they are of different orders. Thus, whether a person is or is not sexually attracted to children is a matter of fact that in principle could be proved either way. But I don't think that whether a person is a racist is amenable to factual proof because there is a scale of value judgments that come with it. If I were at once and to my best of my memory I never have, but imagine that at some point in the far distant past, in a bar one night, perhaps in my teens, I said something about Australians that might be regarded as racially offensive, there might well be people from that night who remember me and regard me as racist. So there's a scale there. And that person's view of me would be a value judgment based on all the facts that they had which was the behaviour they saw from me at the time. As I say, I don't think I know that there was anything like that and certainly not about Australians. I do like Australians, many Australians friend, which is of course what people say when they're being offensive about trying to get away with it. So I think it should be dealt with as a statement of opinion. However, in respect to thought, the possibility of relying on the opinion defence was prevented at first instance. See my comments on interpretation of section three. It will be dealt with by the court as a provable fact. And it's a crying shame because a) it ought to be regarded as a matter of opinion because its value judgment b) if you regard it as a matter of opinion, it's easier to defend. And thus you get more debate about people's political beliefs. So I go back to the David Irving case, Irving against Penguin Books in the 1990s, which was when the Holocaust denier David Irving brought a libel case against the borough, that Penguin Books and Rispose of allegations that he was a holocaust denier. It was very difficult to her to defend that because she had to prove it as a matter of truth that he was rated. It would have been far easier for her to defend it if she had been able to defend it as an opinion or as we called it back then for a comment. An opinion based defence. And that would have been better for her for debate for democracy, frankly, in a way that we can talk about people's political views when they put them out there. If we are in an age which the defamation act 2013 suggests the ought now to be where we are prioritising freedom of expression, if we are trying to maintain credibility with the public in an age of the sifterous and robust online debate, then we should be trying to accommodate as much as possible. And things like treating allegations of racism as expressions of opinion, still needing to be subjected to controls in the section three defence would seem to me to be a logical step forward and desirable step forward. We don't need to go far as the Americans have done. In our last newscast we were talking about the Drake case about the Kendrick Lamar's song. We looked at how the American approach regards opinion as an absolute defence. Opinions in the US, once the statement is able to opinion, it simply cannot be action in defamation. The fact of it being an opinion is an absolute defence. It's a qualified defence, but it seems to me to be one that we should be using more literally. That's a nice place to wrap up. Great talk to you Tom. Thank you so much for your opinions and views on this very interesting new judgement. We will of course keep listeners posted as to which way it goes. Back to first instance or up to the Supreme Court. We'll be covering it as ever follows on social media and we'll be back with more newscasts in the weeks of time. Thanks very much. Bye. [BLANK_AUDIO]