Social media platforms offer users the unique space for everyday individuals to share opinions, views, and experiences instantaneously with a widespread reach. While such developments expand the capability for individuals to engage their freedom of expression, they pose new realities, implications, and challenges for defamation law, which has been practiced in the UK for hundreds of years. How has the law adjusted to the realities of digitisation? What can users on X, for example, legally share without stepping into defamatory territory?
Section 3(3) of the Defamation Act 2013 establishes that, where an action for defamation has been made against an individual, that individual is able to defend themselves by demonstrating the allegedly defamatory statement is based upon an honest opinion they hold. To successfully invoke such a defence, the defendant must generally demonstrate that:
- the statement complained of was a statement of opinion;
- the statement complained of indicated the basis of the opinion; and
- an honest person could have held the opinion on the basis of a fact that existed at the time the statement complained of was published.
Put otherwise, users cannot make statements about others (in-person nor online) if not founded on some basis of fact and genuinely held as an opinion. The law, in this sense, is intended to inhibit reckless, frivolous spoken and written statements.
This statute has been central to the recent case Blake v Fox [2025] EWCA Civ 1321.
Blake v Fox
In October 2020, when Simon Blake, Colin Seymour, and Nicola Thorp expressed their opinion on X (then Twitter) that Lawrence Fox is a ‘racist’, Fox responded by tweeting that each of them is a ‘paedophile’. Though Fox subsequently deleted these tweets, Blake, Seymour, and Thorp brought a claim of libel against Fox. Fox then responded with a libel counterclaim against each of the three claimants over the allegations of being racist.
At the High Court, the tweets alleging Fox as a racist were found to be expressions of opinion. Vitally, Blake and Seymour had ‘quote-tweeted’ Fox, sourcing the basis of their opinion. On the other hand, Thorp did not ‘quote-tweet’, posting her views instead as a new thread. Ms Thorp could therefore not plead the defence of honest opinion, and could only succeed by providing the allegation was substantially true. Failing to establish the claimants’ tweets had caused (or were likely to cause) serious harm to his reputation, Fox’s counterclaim against the three claimants was dismissed.
Mr Fox’s tweets alleging Blake and Seymour to be paedophiles were found to be statements of fact, and to consequently cause (or be likely to cause) serious harm. The judge therefore found in favour of Blake and Seymour, and awarded each of them £90,000 in damages. Ms Thorp’s claim was dismissed by the High Court, as the judge found Fox’s tweet about her to be an obvious use of parody, and therefore did not cause her serious harm.
Fox then appealed the judgment. While the Court of Appeal upheld the High Court’s findings that Fox’s tweets caused serious reputational harm to Blake and Seymour, it took into account the mitigating steps Fox had taken to find the High Court’s award in damages to be excessive, reducing the damages to £45,000 each instead. While the Court of Appeal found expressions of opinion to be less likely to have harmful effects against an individual’s reputation than statements of fact (depending on the context), it found the High Court had made an error in its judgment to dismiss Fox’s counterclaim on the issue of serious harm. In effect, Fox’s counterclaim was remitted to the High Court for retrial.
From here, the High Court will now have to determine (1) whether the allegation that Fox is a racist is substantially true, and (2) whether the tweets about Fox allegedly being a racist amount to an honest opinion that were based on the facts available to the claimants.
Implications
The outcome of this decision at the High Court will demonstrate how an expression of opinion via social media is treated with different weight to a factual statement, and to what extent the honest opinion defence holds against claims of libel and defamation depending on the context of the posts in question.
While indicative of the contentious and novel challenges the growing use of social media poses to the law, this case has helped to clarify this area of law and its application to the modern-day context of widespread social media use.
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