Emil Kirkegaard v Oliver Smith
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 11 December 2019 |
| Neutral Citation | [2019] EWHC 3393 (QB) |
| Date | 11 December 2019 |
| Docket Number | Case No: QB-2018-000390 |
| Court | Queen's Bench Division |
[2019] EWHC 3393 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: QB-2018-000390
Richard Owen-Thomas (instructed by Samuels Solicitors LLP) for the Claimant
Aled Maclean-Jones (instructed by Debenhams Ottaway Solicitors) for the Defendant
Hearing dates: 26 November 2019
Approved Judgment
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The Honourable
Introduction
This is a trial of meaning and fact/opinion as preliminary issues in a defamation claim brought by the Claimant, Emil Kirkegaard, against Oliver Smith, the Defendant.
The Defendant applies under CPR r 3.1(2)(i) for a ruling on the following preliminary issues:
a. whether the words pleaded in [3] of the Particulars of Claim (PoC) bear the meanings pleaded in [4], [9], and [14]; and
b. if so, whether those meanings are defamatory of the Claimant.
I can state the factual background fairly briefly.
The Claimant describes himself in his PoC as a data scientist. He is also a blogger who regularly writes and speaks on a wide range of topics including psychology, sociology and genetics. He has written on several controversial topics including the IQ of different migrant groups, and the morality of child pornography.
The Claimant and the Defendant are not known personally to one another, but they have often disagreed online.
On 3 February 2018 someone called Anatoly Karlin published a blog/article on the website unz.com (the Karlin blog). In the blog Mr Karlin (inter alia) criticised things which the Defendant had written about him. This blog attracted a significant number of comments from numerous internet users, including the Defendant. Three of the publications that the Claimant complains of (Posts 1, 2 and 3 as they are called in the PoC) were published by the Defendant in this comment thread.
Earlier, on 11 January 2018, a tweet was published from the Defendant's Twitter account (accessible at: www.twitter.com/oliveratlantis) which referred to the Claimant. This is the fourth publication complained of by the Claimant in his PoC. This is Post 4.
On 7 December 2018 the Claimant's Claim Form and PoC were deemed served. The Defendant filed an acknowledgement of service and, after the Defendant's solicitors drew to the Claimant's attention dicta of Nicklin J in Morgan v Associated Newspapers Limited [2018] EWHC 1725, the parties consented to having the issues of meaning and whether the words complained of were fact or opinion being dealt with at trial as a preliminary issue.
A hearing took place on 22 May 2019 in which, due to procedural issues, the trial was relisted for 26 November 2019 before me.
The Defendant is represented by Mr Maclean-Jones. The Claimant is represented by Mr Owen-Thomas. I am grateful to both of them for their clear and helpful written and oral submissions.
The words complained of
The pleaded words complained of and their allegedly defamatory meanings are as follows. This is the chronological order: for some reason, the PoC pleads them non-chronologically.
Post 4: 11 January 2018
“If you merely point out @KirkegaardEmil supports child rape and is a paedophile (by quoting his OWN words) you will get stalked by him. He's a malicious individual and sick creep.”
The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children, a stalker, and that he acts in a predatory sexual manner that is socially unacceptable.
Post 2: 3 February 2018, 4.58pm
“It's not a right or left issue, but right or wrong: anyone with a moral conscience can see Kirkegaard is a vile human and paedophile.”
The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children and therefore a contemptible person.
Post 3: 3 February 2018, 10.33pm
“Why are you defending a blatant paedophile?”
The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children.
Post 1: 4 February 2018, 3.31am
“Like I said, it's obvious to anyone, Kirkegaard is a paedophile. This is why all mainstream newspapers described him as either a paedophile-apologist or paedophile”.
The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children.
Legal principles
Before turning to the parties' contentions, I will set out the material legal principles. These were not in dispute. They are familiar and well-established.
Determining meaning
The principles in relation to meaning were summarised by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [11] – [15] (internal citations omitted):
“11. The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways …
12. The following key principles can be distilled from the authorities …
(i) The governing principle is reasonableness.
(ii) The intention of the publisher is irrelevant.
(iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
(v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
(vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
(vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
(viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues' gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (eg, bane and antidote cases).
(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
(x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
(xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning).”
13. As to the Chase levels of meaning, see Brown v Bower, [17]:
‘They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. In Charman v Orion Publishing Group Ltd, for example, Gray J found a meaning of “cogent grounds to suspect’ [58].
…
15. Finally, in relation to this case, it is necessary to have regard to the ‘repetition rule’ (see Brown v Bower [19]–[32]): namely that where an allegation by a third party is repeated by the defendant, the words must be interpreted by reference to the underlying allegations of fact. Context nevertheless remains critical: Brown v Bower [29].”
The courts have emphasised the importance of avoiding an overly technical analysis of the words complained of where a judge is required to determine meaning. The authors of Gatley on Libel and Slander (12 th Edn) explain at [3.14] that:
“Where a judge has to determine meaning it has been said that the correct approach is to ask himself what overall impression the material made on him and then to check that against the detailed textual arguments put forward...
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