Tony Greenstein v Campaign Against Antisemitism
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 15 February 2019 |
| Neutral Citation | [2019] EWHC 281 (QB) |
| Docket Number | Case No: HQ18M00594 |
| Court | Queen's Bench Division |
| Date | 15 February 2019 |
[2019] EWHC 281 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: HQ18M00594
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
David Mitchell (instructed under Direct Access) for the Claimant
Adam Speker (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 14 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Nicklin
Principally, this is a claim for libel. This is the judgment after a trial of preliminary issues of meaning and fact/opinion as ordered by Master Davison on 4 October 2018.
The Claim Form was issued on 14 February 2018. The Defendant was named as “Gideon Falter and the Trustees of the Campaign Against Antisemitism”. There is an issue as to whether this is the correct defendant, but it is not relevant to the issues I have to determine. I shall refer to “the Defendant” and, where it is important for context, to “the CAA” where I refer to the Campaign Against Antisemitism.
In his Particulars of Claim, the Claimant describes himself as a “ well-known political activist with a focus on issues related to anti-racism, anti-fascism and Palestine”. He complains of five articles alleged to have been published by the Defendant on the website antisemitism.uk on 26 February 2017, 30 July 2017, 25 September 2017, 3 January 2018 and 24 January 2018. I shall refer to them as, respectively, the First to Fifth Articles.
The Articles are set out in the Appendix to this judgment. Paragraph numbers have been added in square brackets. The underlined sections of each Article are the specific words that the Claimant has selected for complaint. Double-underlining indicates that the words were a hyperlink to further material. The balance of each Article is set out because the Court must have regard to the context in which the words appeared. Finally, I have redacted the names of most third parties. This is a public judgment. The Court is not in any position to know whether what is said about them is true or otherwise defensible, and their names have no bearing on the issue of meaning that I have to determine.
The natural and ordinary meanings that the Claimant contends that the words bore are as follows:
i) All five Articles are said to bear the meaning (“the Principal Meaning”):
“… the Claimant is a notorious anti-Semite; a racist prejudiced against all Jews on the grounds that they are Jewish.”
ii) In addition, the First Article is said to bear the meaning (“the Second Meaning”):
“… the Claimant is a generally dishonest fraudster with a history of criminal drug abuse who is making knowingly false statements to the Charities Commission.”
The Defendant served a Defence on 29 March 2018. Given the issues that I have to decide, I have deliberately not considered it in any detail. I have simply looked at it to identify the Defendant's case on meaning. Specifically, I have not considered any of the substantive defences, which are irrelevant for present purposes.
A Reply was filed on 7 June 2018. It is a substantial document running to 49 pages. I have not read it for the same reasons.
In his skeleton argument, Mr Speker for the Defendant said: “ The service of [the Claimant's] Reply prompted [the Defendant] to consider whether the issues in dispute could be reduced.” The Defendant considered that determination of these preliminary issues might achieve a reduction in those issues.
I am not going to repeat what I have said previously about the desirability of an early determination of meaning as soon as it becomes clear that meaning is an issue of dispute between the parties. The same is true where the contest is whether (and the extent to which) the publication(s) complained of contain allegations of fact or expressions of opinion: see Morgan v Associated Newspapers Ltd [2018] EMLR 25 [8]–[10] and Bokova v Associated Newspapers Ltd [2019] 2 WLR 232; [2019] EMLR 6 [9]–[10].
In this case, like most defamation claims, publication and reference are not disputed and the Claimant advances no innuendo meaning. That clears the way for a routine ruling on meaning and fact/opinion; preliminary issues that typically can be determined, as they have been in this case, following a hearing of around 2 hours. If (and to the extent that any of) the other issues currently in dispute between the parties, expansively set out in nearly 90 pages of Defence and Reply, and premised upon their rival contentions on these preliminary issues, remain relevant after determination of the preliminary issues, then that will be a product of luck not design. I do not criticise either party in this case for this – the statements of case were filed before the decisions in Morgan and Bokova – but, in the post-jury era, defamation litigation does not need to be (and should not be) conducted in this unfocused and potentially wasteful fashion. The preliminary issues I am determining, on the anniversary of the issue of this claim, could have been determined at any time since service of the Particulars of Claim.
Mr Speker has set out his arguments as to meaning and fact/opinion in his skeleton. Like the Claimant, the Defendant contends that the five Articles all bear the same meaning in relation to anti-Semitism.
i) He contends all five Articles expressed opinion in the following meaning:
“… the Claimant is a notorious anti-Semite, given how often, and how well he is known for, drawing comparisons of contemporary Israeli policy to that of the Nazis; characterising the creation of Israel as ‘racist’; accusing Jews as a people, and Israel as a state, of inventing or exaggerating the Holocaust; and making mendacious, dehumanising, demonising or stereotypical allegations about Jews”
ii) If the Court finds that the Articles make allegations of fact, then he contends that the meaning of the Articles is:
“… the Claimant is a notorious anti-Semite who regularly and persistently: draws comparisons of contemporary Israeli policy to that of the Nazis; characterises the creation of Israel as ‘racist’; accuses Jews as a people, and Israel as a state, of inventing or exaggerating the Holocaust; and makes mendacious, dehumanising, demonising or stereotypical allegations about Jews.”
As to the Second Meaning in the First Article, Mr Speker's primary submission is that the Second Meaning should be rejected as not a meaning the words bear, or alternatively that it is defective in form. In the alternative, the meaning that the Defendant seeks to defend is that the Claimant:
“(a) lied when he claimed in The Guardian newspaper that the International Definition of Anti-Semitism prevents criticism of Israel;
(b) lied to the Charity Commission when he claimed that the CAA is not concerned with fascist groups who were anti-Semitic Holocaust deniers; and/or
(c) has been guilty in the past of various offences relating to dishonesty and drug-taking”.
At this stage, the Court is determining solely the issues of meaning and fact/opinion. The Court is not adjudicating upon the truth or falsity of the allegations contained in any of the Articles.
Determining meaning and fact/opinion: the Law
In determining the meaning and fact/opinion, I apply the well-established principles set out in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [12]–[18].
Although the Claimant has selected only parts of the Articles for complaint, the Court must ascertain the meaning of these sections in the context of each Article as a whole: Koutsogiannis [12(viii)].
In this case, there is an issue about hyperlinks. As made clear in Warby J's judgment in Yeo v Times Newspapers Ltd [2015] 1 WLR 971 [87], contextual material relied upon by way of hyperlinks is a matter which, as an exception to the rule that no evidence is admissible when determining the natural and ordinary meaning, can and should be proved by evidence. The Defendant has filed a witness statement from Alex Wilson dated 29 January 2019. In it, Mr Wilson helpfully sets out each Article, with hyperlinks underlined. In respect of each hyperlink, he has exhibited what a reader would have been taken to if s/he had followed the hyperlink.
The extent to which hyperlinked material in an article would be read by the ordinary reasonable reader does not admit of a hard and fast rule; it is a matter to be judged on the facts of each case: Falter v Atzmon [2018] EWHC 1728 (QB) [12]–[13]. As with most issues relating to meaning in defamation claims, context is everything.
Mr Mitchell submitted, based on Telnikoff v Matusevitch [1992] 2 AC 343, 352, that in determining whether the statement was an expression of opinion or an allegation of fact, no reference can be made to other material to which reference is made. That is to state the principle too widely. Telnikoff was a newspaper case in which the claimant had written an article which was published in a national daily newspaper. The defendant had written a letter in reaction to that article which was published in the same newspaper 5 days later. It could not be said, therefore, that all readers of the defendant's letter would have read the earlier article and few, if any of them, would have that earlier article to hand. We live in a different world now. Where hyperlinks are provided in an online article, there is no reason to exclude that contextual material. Indeed, depending on the context of the article, it may well lend significant support to the submission that readers would have understood the publication to be an...
To continue reading
Request your trial
-
Simon Blake v Laurence Fox
...[2019] QB 861 [3]–[10]; Morgan v Associated Newspapers Ltd [2018] EWHC 1850 (QB) [8]–[10]; Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) [10]; and Bindel v PinkNews Media Group Ltd [2021] 1 WLR 5497 [27]–[29]. Defamation litigation, so often in the past criticised for it......
-
Emil Kirkegaard v Oliver Smith
...must be ascertained in the context of the publications complained of. As Nicklin J said in Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) at [15]: “Although the Claimant has selected only parts of the Articles for complaint, the Court must ascertain the meaning of these se......
-
Triplark Ltd v Northwood Hall (Freehold) Ltd
...[16]–[17], Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB) [24–29], Greenstein v Campaign against Antisemitism [2019] EWHC 281 (QB) [30], and Butt v Secretary of State for the Home Department [2019] EWCA Civ 933 [34–39]. Nobody has suggested that there is any materia......
-
Teal Swan v Associated Newspapers Ltd
...of fact or opinion it is relevant to consider whether it asserts something verifiable ( Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) [19]) but this is not conclusive, and there is no fixed rule about this ( Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240......