The recent changes to defamation laws in New South Wales mean that you cannot successfully sue someone for defamation unless your reputation has been “seriously” harmed by a publication. The same applies in England and Wales. 

In a recent case in the High Court of England and Wales, a well-known actor and “anti-woke” activist Mr Laurence Fox was held liable in defamation for calling two social workers paedophiles in a Twitter exchange. Mr Fox had also counter-sued the social workers for defamation for calling him racist, but Mr Fox’s claim was unsuccessful.

The defamation cases arose as a result of some very brief Twitter exchanges in October 2020. Mr Fox posted on Twitter that Sainsburys, a UK supermarket chain, had an employee diversity and inclusion policy that was racist. By 2020, Mr Fox had become interested in politics and politically radicalized, including being active in opposing LGBTQ+ culture. The two social workers replied to Mr Fox’s post and called him a racist.  Mr Fox replied to the social workers tweets by calling them paedophiles. 

The two social workers claimed that Mr Fox’s tweet had caused serious harm to their reputations, in particular due to the inherent gravity of an allegation of paedophilia which, in its ordinary meaning, alleges that a person was likely to have engaged in sexual acts involving children. Apart from being a serious crime, an allegation of paedophilia in contemporary society is one of the most serious allegations that can be made against someone.

The social workers were both gay men with a public profile, and in the course of their professions, had worked extensively with vulnerable children and teenagers, including in matters relating to their sexual and mental health, where sexual propriety was very important. Mr Fox had a large Twitter following and, as well as being an actor, was also an emerging national politician.

There was no suggestion or evidence whatsoever that either of the social workers had done anything remotely capable of justifying the allegation of paedophilia. Their reputations were both pristine and Mr Fox did not try and defend his tweets on the basis of “truth.” Mr Fox’s defence was in essence that he replied to an attack on his own reputation (that of racism) and was therefore justified in responding as he did.

The social workers argued that as a result of Mr Fox’s massive social media following, a large audience would have seen the publication. They also argued that due to their role as advocates of the LGBTQ+ community and their work with children, serious harm had been caused to their reputation. 

The Judge agreed and concluded that on balance, it was more likely than not that the “paedophile” tweets had caused, or were likely to cause, serious harm to the reputations of the social workers. The comments were untrue, defamatory and baseless and Mr Fox could not satisfy the Judge that he had any defence recognised in law to his actions. The Judge did not accept Mr Fox’s “reply to attack” defence, stating that a reply to an attack is not a licence to defame.

Mr Fox’s counter claim was that the two social workers had accused him of being a racist, which was likely to cause serious harm to his career in both acting and politics. Ultimately, the Judge held that Mr Fox had not satisfied them that on balance the tweets in question had, more probably than not, caused any serious harm to his reputation. The Judge was not satisfied that the tweets would have made readers  adversely change their minds about Mr Fox’s reputation.

The Judge dismissed Mr Fox’s claim and invited the social workers to file separate submissions in relation to the amount of damages they seek The final amount of damages has not yet been determined.