Andy Ngo v Guardian News & Media Limited [2025] EWHC 3004 (KB)

[2025] EWHC 3004 (KB)Case No KB-2025-002764
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/11/2025
Before
DEPUTY HIGH COURT JUDGE GUY VASSALL-ADAMS KC
Between
ANDY NGOClaimantGUARDIAN NEWS & MEDIA LIMITEDDefendant
William Bennett KC (instructed by Patron Law) for ClaimantBen Gallop (instructed by Guardian News & Media) for DefendantHearing Hearing dates: 19 November 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 28 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................DHCJ GUY VASSALL-ADAMS KC

DHCJ Guy Vassall-Adams KC :

[1]This judgment relates to the trial of preliminary issues concerning meaning in a libel claim.[2]The Claimant is a journalist and the author of a book, Unmasked: Inside Antifa’s Radical Plan to Destroy Democracy. He is an American citizen who now lives in the United Kingdom.[3]The Defendant is the owner and publisher of The Guardian and at the time of the publication sued upon was also the owner and publisher of The Observer (which was subsequently sold to Tortoise Media).[4]This libel claim relates to an article published by the Defendant online at www.guardian.com on 28 March 2025 and in hard copy in the Observer on 30 March 2025 with the headline Mumford and Sons:Rushmere review - back to dreary basics (the “Article”). As the headline indicates, the Article was an unfavourable review of the recently released album Rushmere by the rock band Mumford and Sons (the hard copy article appeared under a different headline which simply referenced the album’s title).[5]The Claimant issued a claim form on 28 July 2025, with Particulars of Claim attached. The Claimant seeks(1) Damages, including aggravated damages;(2) An injunction to restrain the Defendant from repeating the words complained of or any similar words defamatory of the Claimant and(3) An order under s.12 of the Defamation Act 2013 that the Defendant publish a summary of the judgment in these proceedings.[6]The words complained of are the first paragraph of the Article, which is as follows:
“In the wake of the 2021 exit of banjo player (and son and co-founder of GB News) Winston Marshall, Mumford and Sons have reverted to a trio for their fifth album. Marshall’s departure followed an outcry after he praised “alt-right” agitator Andy Ngo. Yet listening to Rushmere, one wonders whether the world might be a better place had every member of the band felt obliged to quit three years earlier, when news broke that they had hosted Jordan Peterson at their studio.”
[7]This libel claim is concerned with the description of the Claimant as an “alt-right agitator”, the meaning of which is the focus of the preliminary issues trial.[8]By Order dated 17 September 2025 Collins Rice J ordered that there should be a trial of the following preliminary issues, pursuant to CPR 3.1(2)(i) and CPR Practice Direction 53B:a. The natural and ordinary meaning of the words complained of in the Article;b. Any innuendo meaning of the words complained of (assuming without deciding that the fact pleaded in the first sentence of paragraph 6.1 of the Particulars of Claim is a fact known to at least one reader of the Article);c. Whether the words complained of were defamatory of the Claimant at common law;d. Whether the words complained of are (or include) an expression of opinion; ande. If the words complained of were (or include) an expression of opinion, whether the basis of that opinion was indicated, in general or specific terms, for the purposes of s.3(3) of the Defamation Act 2013.[9]The Claimant’s pleaded case on meaning at paragraph 5 of his Particulars of Claim is that the natural and ordinary meaning conveyed by the Article was that: The Claimant agitates in support of far-right racist and white supremacist beliefs.[10]The Claimant also pleads at paragraph 6 of his Particulars of Claim the same meaning as an innuendo meaning, in the alternative. The particulars pleaded in support of the innuendo meaning are that “The alt-right is a descriptive term for an amalgam of racists and white supremacists”. There is then a detailed and lengthy pleading setting out various results from Google searches, which particulars are said to go to the prevalence of the definition. The Defendant contends that this is not a proper pleading of facts in support of the innuendo meaning and that much of this material is inadmissible. As Collins Rice J’s order requires me to confine myself to the first sentence of the pleading set out above this is not a matter I need to rule upon as I shall ignore the rest of the pleading.[11]No Defence has been filed, in accordance with the current practice that, where meaning is in issue in a libel claim, meaning is determined as a preliminary issue before the Defence becomes due. The Defendant’s case on meaning is set out in the Defendant’s Case for the Preliminary Issues Trial, as ordered by Collins Rice J, which states that the natural and ordinary meaning of the words complained of is that: The Claimant is an outspoken proponent of “alt-right” ideas and beliefs. Legal principles Defamatory at common law

Legal principles

[12]The test for whether a publication is defamatory at common law is set out in the Court of Appeal’s judgment in Corbyn v Millett [2021] E.M.L.R. 19,where Warby LJ (with whom Sharp P and Vos MR agreed) said at [9]:
“At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as "the consensus requirement", is that the meaning must be one that "tends to lower the claimant in the estimation of right-thinking people generally." The Judge has to determine "whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society": Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68 [51]. The second requirement is known as the "threshold of seriousness". To be defamatory, the imputation must be one that would tend to have a "substantially adverse effect" on the way that people would treat the claimant: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985 [98] (Tugendhat J).”
[13]In addition to satisfying the common law test, today a claimant must show that the publication has caused, or is likely to cause, serious harm to his reputation, under s.1 of the Defamation Act 2013. This test focusses not on the defamatory tendency of the words but on whether as a matter of fact they caused serious harm to the claimant’s reputation. However, serious harm is not one of the issues for this preliminary issues trial.

Natural and ordinary meanings

[14]In most cases the court’s task at a preliminary issues trial is to identify the natural and ordinary meaning of the words complained of. This is the single meaning which the words complained of would convey to the hypothetical ordinary, reasonable reader of those words. No evidence is admissible on the natural and ordinary meaning save for the publication itself but the court may also take into account matters of general knowledge, described by Nicklin J as, “Matters of common knowledge: facts so well-known that for practical purposes everybody knows them” (Blake v Fox [2022] EWHC 3542 (KB), [2023] EMLR 12 at [25(i)]).[15]Applying this purely objective test, the court must enter into the mindset of the ordinary, reasonable reader. For this purpose, the courts have developed a series of well-established principles for deciding meaning in libel cases. The classic summary of these principles was given by Sir Anthony Clarke MR in Jeynes v News Magazines [2008] EWCA Civ 130 at [14], restated and elaborated by Nicklin J in Koutsogiannis v Random House Group [2019] EWHC 48 (QB) and reaffirmed by the Supreme Court in Stocker v Stocker [2019] UKSC 17, [2020] AC 593 at [35]-[38]. Principle (xi) in Koutsogiannis is that the hypothetical reader is taken to be representative of those who would read the publication in question. So here I am concerned with a hypothetical reasonable reader of The Observer.[16]First impressions count in meaning decisions. The correct approach and the established practice for a judge tasked with deciding meaning at first instance is to read or watch the offending publication to capture an initial reaction before reading or hearing argument: Blake v Fox [2023] EWCA Civ 1000 [20] (Warby LJ). The court is also cautioned against over-elaborate analysis (principle (iv) in Koutsogiannis). These two principles – giving weight to the judge’s own impression and avoiding over-elaborate analysis – apply both to decisions on meaning and decisions as to whether the “statement complained of” i.e. the words used (not the defamatory meaning of the words used) were a statement of fact or a statement of opinion: Millett v Corbyn [2021] EMLR 19 at [17]-[18] (Warby LJ). This is the approach that I have adopted in this case.

Innuendo meanings

[17]Sometimes a publication will not be defamatory to the ordinary, reasonable reader possessed simply of general knowledge, but will be defamatory to some readers who have knowledge of specific external facts not referenced in the publication itself that imbue a particular word or phrase with a defamatory meaning. This is called an innuendo meaning and typically such meanings are invoked where technical or slang words have been used. In such cases, CPR Practice Direction 53B para 4.2 requires that a claimant must plead the innuendo meaning and must identify the relevant extraneous facts that, on the claimant’s case, would be known to at least one reader.[18]The court’s assessment of an innuendo meaning remains an objective one. Assuming the special knowledge is proved, the question for the Court is what meaning would have been conveyed to a reasonable person having that special knowledge: Baturina v Times Newspapers [2011] 1 WLR 1526 [56] (Sedley LJ).[19]A single publication may have an ordinary and natural meaning, or an innuendo meaning, or both together, with one meaning to readers who have general knowledge of that matter and a different meaning to those with special knowledge. I have to decide which category this case falls into.[20]Whilst the determination of the natural and ordinary meaning does not involve contested evidence (and is therefore amenable to determination at a trial of preliminary issues), the determination of an innuendo meaning does. This is because the claimant will have to prove that a proportion of readers had the knowledge relied on (that “alt-right is a descriptive term for an amalgam of racists and white supremacists.”) A preliminary issues trial cannot adjudicate on this issue. However, I can decide how a reader who is assumed to have this knowledge would interpret the Article, as the preliminary issue ordered by Collins Rice J at paragraph 8(b) above requires me to do. Whether or not readers did in fact have the requisite knowledge will be determined at the full trial.

Fact or opinion

[21]The honest opinion defence is set out in s.3 of the Defamation Act 2013. The first condition for the defence, under s.3(2), is that “the statement complained of is a statement of opinion.”[22]The court’s approach to determining whether a statement is one of fact or opinion is summarised in Koutsogiannisat [16]: (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 a deduction, inference, conclusion, criticism, remark, observation, etc. iii) The ultimate question is how the word 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. (This final principle is not relevant here.)[23]As Sharp LJ held in Butt v Secretary of State for the Home Department [2019] EWCA Civ 933 at [39], “The ultimate determinant… is “how the statement would strike the ordinary reasonable reader… - that is, whether the statement is discernibly comment” having regard to the subject matter, the nature of the allegation and the context of the relevant words. This is encapsulated in the third Koutsogiannis principle set out above.[24]There are some statements, which though they might appear as opinion, are treated as statements of fact i.e. bare comments (the fourth principle). There is a helpful explanation in Gatley on Libel and Slander, 13th edition, para 13-008, where the authors state:
“ “On occasion, a defamatory statement might seem to have been intended to be understood as a comment but is not defensible by an honest opinion defence. For instance, a publisher might state “in my view, Jones is a disgrace”, without giving any indication of what the underpinning facts are or even that there are any such facts. Alternatively, a speaker might allude to a matter which he believes to be common background knowledge—“given what we all know …”—but misreads the audience and leaves them underinformed as to any alleged factual underpinning for his remarks. The language used clearly implies that an evaluative process has been undertaken by the publisher, but the failure to present or indicate the reasoning prevents the audience from understanding adequately what the remarks are about. Hence, the personal opinion expressed stands in effect as an unexplained and unreasoned factual allegation. This situation has become known as “bare comment”
. Such a statement will be treated as a statement of fact….”[25]At [24] of Millett v Corbyn (ibid.) Warby LJ stated:
“The cases on “bare comment” do not lay down a rigid rule of law that requires a court to depart from this key principle, and artificially treat a statement of opinion as if it was a statement of fact. On the contrary. The authorities show that “bare comment” is a pointer, or guideline, or rule of thumb that reflects the key principle. The question is, would the words used strike the ordinary viewer as a statement of fact or opinion? The answer does not turn on whether any given word is an adjective, noun, or verb, or some other part of speech. This is a matter of substance, not a formal, analytical matter of grammar or linguistics. 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.”

Basis of opinion

[26]S.3(3) of the Defamation Act 2013 sets out the second condition which must be satisfied in order to make out an honest opinion defence:
“the statement complained of indicated, whether in general or specific terms, the basis of the opinion.”
[27]The Explanatory Note 22 to the 2013 Act states:
"Condition 2 (in subsection (3)), reflects the test approved by the Supreme Court in Joseph v Spiller that “the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”."
[28]The passage from Joseph and others v Spiller and another [2010] UKSC 53 [2011] 1 A.C. 852 from which the wording of Condition 2 is taken is set out immediately below, with the key sentence underlined. It is relevant to assessing whether a basis of opinion has been sufficiently indicated in a statement complained of:
“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.”
(emphasis added)[29]Mr Gallop’s case for the Defendant placed heavy reliance on the well-known House of Lords case Kemsley v Foot [1951] AC 345, rightly described as “a difficult case” by Lord Phillips in his judgment in Joseph v Spiller 2011 1 AC 852 at [91].[30]The unusual feature of the case was that the only part of the article complained of that expressly referred to the Claimant, Viscount Kemsley, was the headline “Lower than Kemsley”, an obvious comment. The rest of the article was an outspoken attack on Lord Beaversbrook’s newspapers. The article in fact began as follows:
“The prize for the foulest piece of journalism perpetrated in this country for many a long year, and that is certainly saying something, must go to Mr Herbert Gunn, editor of the Evening Standard and all those who assisted him in the publication of an attack on John Strachey last week.”
The judgment then records that:
“The article went on to make a somewhat violent attack on the conduct of the Evening Standard, a newspaper controlled by Lord Beaverbrook.”
[31]It is clear therefore that although the article did not set out any facts relating to Viscount Kemsley or his newspapers, the comment “Lower than Kemsley” was inviting readers to draw an unflattering comparison between his newspapers and the way he ran them and the damning portrayal of Lord Beaversbook’s Evening Standard in the article. As Lord Porter observed of the libel in his judgment, “It may, in my opinion, be construed as containing an inference that the Kemsley Press is of a low and undesirable quality and that Lord Kemsley is responsible for its tone” (pp.354-355). The substratum of fact which could be implied from the comment was held to be that “the plaintiff was responsible for the press of which he was an active proprietor”. This was a matter of general public knowledge at the time.[32]The key passage for present purposes to which Mr Gallop drew my attention is to be found in this paragraph of the judgment, with the underlined words being those that he emphasised: “Is there, then, in this case sufficient subject-matter upon which to make comment? In an article which is concerned with what has been described as "the Beaverbrook Press" and which is violently critical of Lord Beaverbrook's newspapers, it is, I think, a reasonable construction of the words "Lower than Kemsley" that the allegation which is made is that the conduct of the Kemsley Press was similar to but not quite so bad as that of the press controlled by Lord Beaverbrook, i.e., it is possibly dishonest, but in any case low. The exact meaning, however, is not, in my opinion, for your Lordships but for the jury. All I desire to say is that there is subject-matter and it is at least arguable that the words directly complained of imply as fact that Lord Kemsley is in control of a number of known newspapers and that the conduct of those newspapers is in question. Had the contention that all the facts justifying the comment must appear in the article been maintainable, the appeal would succeed, but the appellant's representatives did not feel able to and, I think, could not support so wide a contention. The facts, they admitted, might be implied, and the respondents' answer to their contention is: "We have pointed to your press. It is widely read. Your readers will and the public generally can know at what our criticism is directed. It is not bare comment; it is comment on a well-known matter, much better known, indeed, than a newly printed book or a once-performed play."[33]In his judgment in Joseph v Spiller, Lord Phillips analysed Kemsley v Foot as follows:
“94. My reading of the position is as follows. The House had held that the defence of fair comment could be raised where the comment identified the subject matter of the comment generically as a class of material that was in the public domain. There was no need for the commentator to spell out the specific parts of that material that had given rise to the comment. The defendant none the less had quite naturally given particulars of these in order to support the comment. Lord Porter held that it was not necessary to prove that each of these facts was accurate provided that at least one was accurate and supported the comment. 95. This passage does not support the proposition that a defendant can rely in support of the defence of fair comment on a fact that does not form part of the subject matter identified generically by the comment. Even less does it support the proposition that a defendant can base a defence of fair comment on a fact that was not instrumental in his forming the opinion that he expressed by his comment. The last sentence of the passage that I have cited makes this plain. 96. I can summarise the position as follows. Where, expressly or by implication, general criticism is made of a play, a book, an organ of the press or a notorious course of conduct in the public domain, the defendant is likely to wish in his defence to identify particular aspects of the matter in question by way of explanation of precisely what it was that led him to make his comment. These particular aspects will be relevant to establishing the pertinence of his comment and to rebutting any question of malice, should this be in issue. Lord Porter's speech indicates that the comment does not have to refer to these particular aspects specifically and that it is not necessary that all that are pleaded should be accurate, provided that the comment is supported by at least one that is.”

The parties’ submissions

[34]I had the benefit of comprehensive skeleton arguments from counsel and oral argument over half a day. What follows therefore is a summary of the key arguments made by the parties, not a blow-by-blow account.[35]For the Claimant Mr Bennett KC’s main arguments were as follows. On natural and ordinary meaning, he argued that alt-right was synonymous with far right and racist beliefs and that this was a matter of common knowledge. He emphasised that the fact these beliefs were “beyond the pale” was reinforced by the fact that Winston Marshall’s praise of the Claimant caused such an “outcry” that he left Mumford and Sons. The reader would know, he argued, that alt-right was not simply a manifestation of normal conservative ideology,[36]On innuendo meaning, he argued that the reasonable reader who knew that “alt-right is a descriptive term for an amalgam of racists and white supremacists” (as the preliminary issue requires me to assume) would conclude that the article bore his pleaded innuendo meaning.[37]He argued that both the natural and ordinary meaning and the innuendo meaning were clearly defamatory. It is implicit that alt-right is an objectionable form of political belief by reason of the fact that it caused such an outcry that Winston Marshall left Mumford and Sons.[38]On fact/opinion, he argued that the matters described in the article are factual in nature; there was an outcry which caused Mr Marshall to leave Mumford and Sons because he “praised alt-right agitator Andy Ngo”. In oral argument he emphasised that the word “agitator” is suggestive of action – this is not just an armchair observer, but someone who “gets out there”. He described the Defendant’s case that this is opinion as “untenable”, but said that if it is comment, it is bare comment because the facts on which it is based are not set out, even generally, in the Article.[39]On the basis of the opinion, he argued that an opinion needs to be based on facts: not just “in my opinion he is an X”, but “in my opinion he is an X because of Y”. But the Defendant had not identified any words used in the article which indicate, either generally or otherwise, the “ideas or beliefs” upon which one would conclude that the Claimant is an alt-right agitator. Fundamentally, an opinion can’t be the same as its basis.[40]For the Defendant, Mr Gallop emphasised the following points. On natural and ordinary meaning, he argued that the Article is a humorous, opinionated and pithy music review. The ordinary reasonable reader would read this once only and the fleeting reference to the Claimant would make very little impression. The reader would not be thinking about what definition applies to the alt-right – this would be overly analytical. The ordinary reasonable reader would recognise this is a subjective term meaning different things to different people. He described the Claimant’s pleaded meaning as “strikingly extreme”.[41]He accepted that alt-right suggests a political position more radical than ordinary centre right politics, but balked at the term “extreme” and argued that the term was not a synonym for far right.[42]He argued that “alt-right” used quotation marks to signify that this is how other people have characterised Mr Ngo’s beliefs. He argued that this was a statement of opinion, a “criticism, judgment, remark or observation” about Mr Ngo’s publicly stated views.[43]In terms of s.3(3), Mr Gallop argued the Supreme Court in Spiller had confirmed that the indication of the basis of the opinion need not be sufficient to enable the reader to evaluate the criticism, as had previously been the law. He argued that that he was “on all fours” with Kemsley, that the comment here had identified the subject matter generally as a class of material that was in the public domain and all that is required is a “merest indication of the subject matter of the comment”.

Assessment

[44]Having by now had the benefit of detailed legal submissions, I must try to step back at this point and ask myself how the Article would be understood by the ordinary reasonable Observer reader, having regard to the words used and any matters of general common knowledge that provide further context. In doing this exercise, I should give appropriate weight to my own first impressions, both as to meaning and as to fact or comment, formed before I read any submissions or heard detailed argument. I proceed on the basis that the ordinary reasonable reader would read the article through once, without stopping and without engaging in any in-depth analysis of the words.[45]For the purpose of meaning, I think the crucial features of the first paragraph of the Article are the description of the Claimant as an “alt-right agitator” and the context in which those words are used, namely that Mr Marshall’s praise for the “alt-right agitator” Andy Ngo prompted such an outcry that Mr Marshall had left Mumford and Sons.[46]I accept the Claimant’s submission that alt-right would be understood by readers to refer to an extreme right-wing position that is not simply a manifestation of normal conservative ideology. This follows both from the use of the word alt-right (which distinguishes it from other right-wing positions) and from the fact that Mr Marshall’s praise for “alt-right agitator” Andy Ngo had led to an outcry that prompted him to leave the band. Mr Gallop was compelled to accept that the term “alt-right” referred to what he called a “radical” or controversial right-wing position.[47]It seems to me that the use of the word agitator is also important; the word describes the Claimant’s actions not his views; he is alleged to be agitating in favour of, or actively promoting, “alt-right” views.[48]The Observer has a highly educated and well-informed readership. I think the ordinary reasonable Observer reader would understand “alt-right” to be synonymous with far right in this context, because readers have been told that Mr Marshall’s praise for the Claimant had given rise to such an outcry that he had left the band.[49]In my view, the natural and ordinary meaning of the words complained of is that the Claimant actively promotes far right beliefs. This is very close to, but not identical with, my first impression on meaning.[50]For the purpose of deciding the innuendo meaning, I am required to assume that at least one reader would know the fact that “alt-right is a descriptive term for an amalgam of racists and white supremacists”. On this basis, I am persuaded that the innuendo meaning of the Article is that the Claimant actively promotes far right, racist and white supremacist beliefs. Whether this innuendo meaning can be sustained in practice will be a matter for the main trial.[51]Both the natural and ordinary meaning that I have found and the innuendo meaning are plainly defamatory at common law. To allege that a person is actively engaged in promoting far right beliefs tends to harm their reputation in the eyes of right-thinking members of society generally and clearly meets the seriousness threshold at common law. The same is obviously true for the innuendo meaning, which embraces allegations of racism and supporting white supremacism.[52]In my view, the description of the Claimant as an “alt-right agitator” in this specific context is an assertion of fact. The focus of the allegation is not that he holds certain beliefs, but that he agitates for them. I believe this would strike the ordinary reasonable reader as an assertion of fact. That was also my first impression on reading the article. It follows that I find that the statement is not recognisable as opinion, so s.3(2) of the 2013 Act is not made out.[53]I readily accept that calling someone “alt-right” or an “alt-right agitator” could, in a different context, be a statement of opinion. If the journalist had said “the alt-right agitator Mr X who was involved in Y famous (alt-right) event”, or “the alt-right Mr X who expresses his scandalous views on the website Y”, then (depending on the whole context) an ordinary reasonable reader might well have understood this description as a statement of opinion based on facts set out in the article or a class of material in the public domain.[54]If I am wrong about that and the statement is recognisable as opinion, in my view this is a case of bare opinion. The reader is simply presented with the assertion that the Claimant is an “alt-right agitator” without any further facts to support it: the reader has no indication what views the Claimant expressed, what actions he took or what publicly available material linked to him prompted the author to describe him in this way. Accordingly, I believe this is a classic case of bare opinion and the statement should be treated as an allegation of fact.[55]On the premise that I might be wrong that this is not a statement of opinion, I also consider the position under s.3(3) of the Defamation Act 2013. This issue is closely connected to the question of bare opinion in the sense that if I were to find that the test in s.3(3) is met – that the statement complained of indicated, whether in general or specific terms, the basis of the opinion, then necessarily I would reject the submission that this is a bare opinion. For this reason, I considered these issues together even though for the purpose of this judgment I set out my reasoning in a structured way.[56]The statutory test under s.3(3) of the 2013 Act is whether “the statement complained of indicated, whether in general or specific terms, the basis of the opinion.” This can be done either expressly or impliedly.[57]I accept Mr Gallop’s submission that Joseph v Spiller liberalised the law in this area, such that a defendant no longer needs to show that he included sufficient facts to enable the reader to judge for himself if the opinion was well founded. That was an important change in the law, reflected in s.3(3) of the 2013 Act, making it significantly easier to defend a wider range of opinions. See, for example, Whyte v British Medical Association [2025] EWHC 1782 (KB), where the opinion that the Tweets were antisemitic was supported by a statement that the relevant Tweets had been found online. Nonetheless, s.3(3) does still require the defendant to show that the statement complained of indicated the basis of the opinion, either in general or specific terms. In short, the requirement for an indication of the factual underpinning is now much more easily satisfied than it was before Joseph v Spiller, but it is still a necessary condition for a successful honest opinion defence.[58]The statement complained of contains no express indication, either of a general or a specific nature, as to the basis of the opinion. The journalist does not identify what it is that has led him to describe the Claimant in this way, what views he has expressed, actions he has taken, or publicly available material connected to him supports this description.[59]Mr Gallop argues that there is an implied indication as to the factual basis of the opinion and that this case is “on all fours” with Kemsley v Foot. Ordinarily to avail himself of the honest opinion defence a defendant must be able to point to facts set out in the article itself which support the opinion. In some circumstances, however, the defence can be made out where there is no such express reference, but the underlying substratum of fact can be implied because the subject matter of the comment is itself a matter of general knowledge or notoriety. That was the case with Viscount Kemsley – it was a matter of common knowledge that he was the proprietor of national newspaper titles and the sort of coverage for which he was responsible. The same can be true in a variety of other contexts, such as when books, plays or films are placed before the public.[60]There is no true analogy with Kemsley v Foot on the facts of this case. The Claimant himself is not a well-known public figure, he submits (and I agree) that most people would never have heard of him. He is not notorious in the public mind for things he has said and done. If as a journalist he is responsible for many publications in which he expresses his views, those are not a matter of general knowledge. Accordingly, the statement complained of in this case does not impliedly identify its subject matter as a class of material that is in the public domain.[61]For these reasons I conclude that s.3(3) of the 2013 Act is not satisfied, as the statement complained of does not indicate, either in general or specific terms, the basis of the opinion.