“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: Slim v. Daily Telegraph Ltd [1968] 2 Q.B. 157. 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 (e.g. 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 the 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).” 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 (e.g. 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 the 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).”
“This simply means that in reading the article as a whole if a ‘stain’ is removed in another part of the publication, the bane and antidote must be taken together when considering whether the article is defamatory, see Cruise v. Express Newspapers [1999] Q.B. 931 at 939. Whether the antidote has removed the bane is very much a matter of impression. In Cruise, it was suggested that it would be rare that the antidote removed the bane, and reference was made to cases in which the bane had been destroyed by the contents of the article. There is no rule of law to the effect that antidote can never remove the bane, and there is no rule of law to the effect that an antidote will always remove the bane. It is a matter for the hypothetical reasonable reader.”
“The bane and antidote theory … is merely a vivid way of stating that the whole publication must be considered, not a segment of it.”
“One asks, therefore, in this as in any other case where the principle is invoked, whether, considered as a whole, the publication is damaging to the claimant’s reputation.”
“53. As I have noted, the law relating to meaning, and to the distinction between fact and comment, makes some allowance for the need to give free rein to political speech. But the nature of the principles means that there are limits on the protection that can be given to political speech by those means. 54. The law must accommodate trenchant expression on political issues, but it would be wrong to achieve this by distorting the ordinary meaning of words, or treating as opinion what the ordinary person would understand as an allegation of fact. To do so would unduly restrict the rights of those targeted by defamatory political speech. The solution must in my judgment lie in resort, where applicable, to the defences of truth and honest opinion or in a suitably tailored application of the law protecting statements, whether of fact or opinion, on matters of public interest, for which Parliament has provided a statutory defence unders.4 of the Defamation Act 2013 .”
“Nor can the political role and status of Mr Corbyn, or the political nature of the programme and its subject-matter, alter the approach required as a matter of law, still less dictate the answer to the question of whether the statement was one of fact or opinion. These are all important features of the context to which the court should be alive when deciding how Mr Corbyn’s words would have struck the ordinary viewer. But they are no more than that.”
“(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. (2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations. (3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.”
“i) The statement must be recognisable as comment, as distinct from an imputation of fact. ii) Opinion is something which is or can reasonably be inferred to be deduction, inference, conclusion, criticism, remark, observation, etc. iii) The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion. iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment. v) Whether an allegation that someone has acted ‘dishonestly’ or ‘criminally’ is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.”
“It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.”
“The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment… The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him … Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails.”
“In practice, when someone uses a descriptive word without giving any detail of what he is describing, that will tend to come across as an allegation of fact. That is what the cases on ‘bare comment’ say.”
“102. It is a requirement of the defence that it should be based on facts that are true. This requirement is better enforced if the comment has to identify, at least in general terms, the matters on which it is based. The same is true of the requirement that the defendant’s comment should be honestly founded on facts that are true. 103. More fundamentally, even if it is not practicable to require that those reading criticism should be able to evaluate the criticism, it may be thought desirable that the commentator should be required to identify at least the general nature of the facts that have led him to make the criticism. If he states that a barrister is ‘a disgrace to his profession’ he should make it clear whether this is because he does not deal honestly with the court, or does not read his papers thoroughly, or refuses to accept legally aided work, or is constantly late for court, or wears dirty collars and bands. 104. Such considerations are, I believe, what Mr Caldecott had in mind when submitting that a defendant’s comments must have identified the subject matter of his criticism if he is to be able to advance a defence of fair comment. If so, it is a submission that I would endorse. I do not consider that Lord Nicholls was correct to require that the comment must identify the matters on which it is based with sufficient particularity to enable the reader to judge for himself whether it was well founded. The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did. A fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism.”
“The only question raised by s.3(3) of the 2013 Act is whether the statement complained of indicated the basis of the opinion which it contained. That is a question of analysis or assessment which turns exclusively on the intrinsic qualities of the statement complained of. If the statement did not indicate the basis for the opinion the analysis stops there and the defence fails. If it did, the condition is met and the analysis moves on to the next stage. The extraneous question of whether the matters indicated as the basis for the opinion are true or false is immaterial at this stage of the analysis. As Nicklin J held at [92], ‘The issue (at this stage) is not whether the factual premise is right, but whether it was sufficiently indicated.’”
“MULTI-MILLION POUND DONOR TO LABOUR SAYS HAMAS ARE ‘FREEDOM FIGHTERS’ Labour have spent the week saying the Tories should pay back the£10 million they received from someone who they say said something racist. Similarly long time Labour Party donor Dale Vince has given Starmer’s party at least£2.5 million to date, including a£1 million cheque late last year. He’s recently launched an initiative calling for the youth of Britain to vote Labour. Well and truly in the fold of Labour’s funding class . . . If Labour thinks donor’s cash donations should be returned when they say extreme things, what do they make of Vince’s views? Late last year on Times Radio, after saying that Hamas should be able to defend itself, Vince stated that ‘one man’s terrorist is another man's freedom fighter’. When challenged on the fact that saying Hamas are freedom fighters isn’t the official Labour position, Vince said: ‘This is my view, this is how I feel’. When can we expect Starmer to announce that the£2.5 million will be returned?”
“Stig Abell: I’m not saying that. I’m saying: is a terrorist attack from Hamas, Palestine defending itself? Dale Vince: I think one man’s freedom fighter is another man’s terrorist, right. That’s how it works. Stig Abell: So that is not the Labour position interestingly. They are not saying that; they are saying the opposite of that. Dale Vince: No, I know, yeah I understand. Stig Abell: But you are happy to, this is pragmatism. Dale Vince: But this is my view. Stig Abell: This is your view. Dale Vince: This is how I feel.”
“JEWISH MP BLASTS LABOUR FOR TAKING MILLIONS FROM ‘HAMAS FREEDOM FIGHTERS’ DONOR LABOUR SLAMMED FOR HAMAS ‘FREEDOM FIGHTERS’ DONOR Labour have gone down the suspect donor rabbit hole this week. By claiming that money should be returned from a donor who said something naughty they’ve opened themselves up to obvious criticism. Longtime Labour Party donor Dale Vince has given the party at least£2.5 million to date and said in October of Hamas: ‘one man’s terrorist is another’s freedom fighter… this is my view’. No apology from Vince, no statement of criticism from Labour… Prominent Jewish MP Andrew Percy tells Guido: ‘Nobody should take a penny or have any involvement with anyone who describes the Hamas terrorists who raped Israeli women, butchered innocent children, and murdered civilians in their own homes in the most brutal way as ‘freedom fighters’. This is a group who want to murder not just all Jews in Israel but all Jews in this country too. Surely the Labour Party won’t want to take a penny from anyone who thinks genocidal terrorist murderers and rapists are freedom fighters.’ Labour say the comments aren’t comparable to Hester’s. Why not?”
“Lord Bailey: Let’s talk about paying back donations. You’ve had major Labour Party donors who have called Hamas freedom fighters. Matthew Laza: Who? Lord Bailey: Dale Vince. There you go, Dale Vince. He said, um, one man’s terrorist is another man’s freedom fighter. Matthew Laza: Dale Vince does not support Hamas. Lord Bailey: He never was even asked to pay the money back. Let’s talk about Just Stop Oil then – he supports them whole-heartedly. They’ve been absolutely devastating for people … Matthew Laza: There’s a difference between supporting Just Stop Oil, Shaun, and calling for the death of an MP. Lord Bailey: Not really, when you’ve called Hamas freedom fighters. I’m afraid no. Matthew Laza: He did not say that. Lord Bailey: He did, he said ‘one man’s … Matthew Laza: It’s a well-known phrase that – he didn’t say that he thought they were freedom fighters. Lord Bailey: Well, I’ll tell you something now, that’s how people read that statement. The point is you’d take a Labour MP much more seriously if when they messed up they asked for the money back, not only when the Tories did.”
“The Claimant had, or it was reasonably suspected that he had, endorsed the terrorist acts of Hamas by stating words to the effect that its members are freedom fighters.”
“The Claimant stated that one man’s terrorist is another man’s freedom fighter in relation to Hamas giving rise to the reasonable interpretation that its members are freedom fighters.”
“It is important to acknowledge that assessing the meaning(s) of an hour-long television programme is to a large extent a matter of impression. . . . one must not be over-analytical, in the sense of subjecting the text to a leisurely or legalistic breakdown: ordinary viewers will not have had that opportunity. The overall flavour of a programme may contribute to an interpretation which would not necessarily be found when subjecting the text to piecemeal analysis. There is a risk that such an exercise will focus on the trees and miss the wood.”
“With a broadcast such as this, this is not a matter of studying the transcript, which cannot tell you how the words are spoken, in what tone, or with what emphasis. It means watching and listening to the interview as a whole, bearing in mind that the ordinary viewer will do so only once. The court should avoid over-elaborate analysis and give weight to its own impression. This approach applies equally to the methodology for deciding meaning, and whether the offending statement is fact or opinion…”
“I’m not, no. I’m not. No, absolutely not. Wow.”
“Whilst everything does depend on the context, the effect of that type of reporting is often not to create the impression of guilt but to leave in the mind of the ordinary reasonable reader grounds to suspect the person of guilt of the conduct alleged. Sometimes, the effect of the denial can itself be undone by the way it is reported. If a mountain of evidence is presented in an article and there is a mealy-mouthed denial, the reader may conclude that the denial is insincere or not to be accepted.”
“Mr Telnikoff demands that in the interest of more effective broadcasts the management of the BBC’s Russian Service should switch from professional testing to a blood test. Mr Telnikoff is stressing his racialist recipe by claiming that no matter how high the standards and integrity ‘of ethnically alien’ people Russian staff might be, they should be dismissed.”
“Two days after last October’s abominable Hamas attack in Israel, Mr Vince chose words during an interview on Times Radio which I and many others interpreted as him viewing Hamas as ‘freedom fighters’. His interview was rightly the subject of widespread condemnation, and it was in that context that during a GB News show in March I quoted Mr Vince’s words and expressed an interpretation of them which was in line with that of many others.”
“There is also the important factor of holding to account those that are apologists for vile antisemitic entities such as Hamas.”
“The Claimant is an apologist for Hamas and other vile antisemitic terrorist organisations and is therefore by implication himself an antisemite. Just two days after Hamas committed the abominable acts of mass murder, kidnapping and rape last October, he publicly defended it as an organisation of freedom fighters.”
“The Claimant used words during an interview on Times Radio on9 October 2023 [just two days after Hamas committed the abominable acts of mass murder, kidnapping and rape] that gave rise to the reasonable interpretation that he viewed Hamas as ‘freedom fighters’ and he thereby acted as an apologist for Hamas [which is a vile anti-Semitic entity].”
“Stig Abell: We’re talking about how more disciplined Labour feel today and one area is of course what is going in, in Israel and Gaza, the Palestinian question. We had Rachel Reeves on, she had a very clear line: Hamas are terrorists, Israel has a right to defend itself. Under Jeremy Corbyn that line would not have been possible and I know your club Forest Green Rovers lost two sponsors over flying the Palestine flag. You’ve compared the conflict there with the situation in Ukraine. You worry that… Do you agree with Labour’s position? Hamas are terrorists, Israel has a right to defend itself. Dale Vince: Er, yes. Stig Abell: Straight forwardly as that. Is this you being disciplined or is this what you actually think? Dale Vince: No, no. Stig Abell: Because you, I have seen you on social media saying, during the thing, is this a good example of you want Labour elected, you can smell trouble in this area and therefore you are not going to say anything that you believe. Dale Vince: No, it’s not true, I’m not like that. But look everybody always says Israel has the right to defend itself, nobody ever says that about Palestine, why is that? Stig Abell: So, do you think, so Palestine has a right to it? But is… Dale Vince: Does it not? Stig Abell: Well, I’m not saying that. I’m saying: is a terrorist attack from Hamas, Palestine defending itself? Dale Vince: I think one man’s freedom fighter is another man’s terrorist, right. That’s how it works. Stig Abell: So that is not the Labour position interestingly. They are not saying that; they are saying the opposite of that. Dale Vince: No, I know, yeah I understand. Stig Abell: But you are happy to, this is pragmatism. Dale Vince: But this is my view. Stig Abell: This is your view. Dale Vince: This is how I feel, look, look what’s happening in Palestine, millions of people living in an open prison in effect, sixteen-year economic siege, they have no borders open to themselves, they depend utterly on Israel for their power, everything that goes into the country. Stig Abell: So, did you think that was freedom fighting? What you saw over the weekend? Dale Vince: No look, listen I don’t, I don’t support what they did. I don’t. Stig Abell: OK”
“If [Lord Bailey] had watched the full extract from the interview which concerned Israel/Palestine, he would know that the freedom fighter allegation is not true.”
“Again, how could Lord Bailey have reached this conclusion if he had listened to or watched the interview? Surely, if he had done so, he would have seen that the ‘negative press coverage’ he refers to had just slavishly followed the Guido Fawkes’ line, which was based on a falsehood that should have been obvious to anyone who had knowledge of what I had actually said during the interview.”
“Freedom fighters and terrorists, it depends on where you sit in a given conflict, Really, my point was that in the west we tend to agree on who’s the bad guy and who’s the good guy, but we are not the only people in the world. And there are people on the other side of the conflict who see it very differently.”
“The parties should, however, understand that Mr Justice Pepperall neither invites nor encourages post-hearing argument or the submission of disputed evidence that, under the rules, should have been served some time in advance of the hearing. Subject to any formal application, the judge’s starting point is that cases are to be decided on the basis of the evidence properly served in advance of a hearing and the submissions made at the hearing. If one or other party believes that there is a proper reason for communicating with the judge in this case then Mr Justice Pepperall asks that he hears only from the instructed advocates. He would expect great circumspection before lodging any further submissions or evidence. Further, he would not expect a barrage of emails but rather a single email sent jointly by the instructed advocates setting out their respective positions on whatever they consider proper now to draw to the judge’s attention.”
“I think one man’s freedom fighter is another man’s terrorist right, that’s how it works.”
“In practice this issue is seldom likely to be explored, for the burden is on the claimant and how can he set about proving that the defendant did not believe what he said?”
“No, look. Listen, I don’t, I don’t support what they did. I don’t.”
“No look, listen I don’t, I don’t support what they did, I don’t.”
“In my view the judge should have followed his original instinct. It is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better.”
“Resolving any case at an early stage saves expense and court time. It can be especially valuable in defamation cases. These involve a clash between the right to a reputation and the fundamental freedom to communicate information and ideas. Notoriously, the costs can swiftly become disproportionate to the issues at stake. Summary determination of such claims reduces the risk that the rights of the claimant or the defendant will be ‘chilled’ by the costs of litigation and by the same token tends to give effect to the overriding objective.”
“In the terror attack …, it is estimated that Hamas murdered around 1,200 civilians, many of them women and children, and took more than 240 hostages. The perpetrators also raped and mutilated many of their victims.”
“Hamas is violently antisemitic to its core and is bent on the destruction of Israel and its inhabitants. Its charter is replete with vicious antisemitism and begins with these words: ‘Israel will … continue to exist until Islam wipes it out, as it wiped out what went before.’ It is also genocidal and so is closely aligned in its core aims with those of the Nazism of the Third Reich which was responsible for the extermination of 6 million Jews. As you correctly observe … the UK Government proscribed Hamas in 2021 and has subjected it to sanctions. Hamas is also widely regarded by many other countries as a terrorist organisation. We therefore take from your correspondence that it is common ground between both our clients and respective firms that Hamas is a terrorist organisation and that any individual who acts as an apologist for it should be excoriated accordingly … It therefore appears that by virtue of his remarks supporting Hamas and its violent methodology during the Interview your client has ‘express[ed] an opinion or belief that is supportive of a proscribed organisation and in so doing [was] reckless as to whether a person to whom the expression was directed will be encouraged to support a proscribed organisation’, and has thereby committed the offence created by s.12(1A)(a) and (b) of theTerrorism Act 2000 as cited in the First Letter … Evidently the interpretation placed by our client during the Programme on the comments made by your client during the Interview is widely shared; i.e. that he spoke as an apologist for Hamas. The Programme The First Letter also helpfully includes a transcript of the relevant portion of the Programme. Little need be said about this, except firstly that just as in the Guido Fawkes article to which we refer below and many others, our client reasonably interprets your client’s remarks during the Interview to be characterising Hamas as freedom fighters – that being their obvious meaning.”
“Please note therefore that it is our client’s intention to place this correspondence in the public domain to enable your client’s conduct and that of your firm to be the subject of public scrutiny. Please note that this will be done including whatever response is received to this letter, but in any event at 4.00 on 23 May if no response is forthcoming. Please also note that our client intends to ensure that that it is raised in both Houses of Parliament and will be sending a copy of the letter to senior members of his party.”
“Where a defamatory statement has received insignificant publication in this jurisdiction, but there is a threat or a real risk of wider publication, there may well be justification for pursuing proceedings in order to obtain an injunction against republication of the libel.”