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17.12.24

What it means to be called a ‘bike nonce’ and other similar meaning decisions

Since the dawn of defamation claims, it has been a requirement to determine the meaning of the words complained of (i.e. the sting of the libel).  Once the preserve of the jury at trial, this is now determined by a judge and, in most cases, at a trial of preliminary issues (normally also deciding whether that meaning is defamatory at common law, and whether the words complained of were a statement of fact or opinion) prior to the service of any Defence.  Determining these matters at an early stage is intended to reduce overall costs, at least in part by giving the parties early certainty about the scope of litigation and reducing the requirement to litigate on alternative bases (e.g. to plead that “if a, then b, but if x, then y”).  These early determinations also often prompt settlement, as the findings can reinforce or critically undermine the claim or the defence(s).

Some decisions on what a statement means are very straightforward (and it is often a curiosity that a determination was necessary at all).  In other cases, the meaning found can be so surprising (and even different to what other judges have decided similar words mean previously) that it becomes impossible to predict how a Court will treat certain terms.

Here we look at three meaning decisions (one of which was made at the final trial) and consider the differences involving words that mean (or perhaps ‘are capable of meaning’) that someone has a sexual interest in children.

Blake & Anr v Fox [2022] EWHC 3542 (KB)

Founder of the right-wing populist Reclaim party, Laurence Fox, announced on Twitter (as it was know at the time) that he would boycott Sainsburys supermarket over its celebration of Black History Month.  Simon Blake, a trustee of Stonewall, and Colin Seymour, a popular drag artist, responded on Twitter labelling Fox a racist.  Seemingly in retaliation, Fox called Blake and Seymour paedophiles.  You can read more about this case here, and later decisions (after the preliminary issues trial) here, and here (note, the final judgment relating to liability and quantum is the subject of an appeal, the Court of Appeal having granted permission to appeal on 16 October 2024).

Blake and Seymour said that Fox’s tweets about them meant that each of them was a paedophile who had a sexual interest in children and had (or was likely to have) engaged in sexual acts with or involving children, such acts amounting to serious criminal offences.

Fox said that his tweets were tit-for-tat vulgar abuse, which did not bear the literal meaning that Blake and Seymour were actually paedophiles, and so was not defamatory at all.

Mr Justice Nicklin found that Fox’s tweets meant that each of Blake and Seymour was a paedophile, someone who had a sexual interest in children and who had or was likely to have engaged in sexual acts with or involving children, such acts amounting to serious criminal offences (a very slightly different formulation of Blake and Seymour’s contended meaning).

Vine v Barton [2024] EWHC 1268 (KB)

Former footballer turned Twitter “personality” Joey Barton, has become something of a poster boy for firing off insulting tweets at and about people he considers to be ‘woke’ and/or insufficiently ‘manly’ to be worthy of time and attention - broadcaster Jeremy Vine amongst them.  On 8 January 2024, Barton tagged Vine in a tweet, which included the following: “@theJeremyVine aka Bike Nonce… AKA pedo defender… you wrongun”.

Vine said this meant that he (Vine) has a sexual interest in children which leads him to defend paedophiles.

Barton argued that the tweet was vulgar abuse without a defamatory meaning at all (as Fox had done), but in the alternative argued that the tweet meant that Vine was a stupid or worthless person who rode a bicycle and who had defended an adult who had been accused of having a sexual interest in a person under the legal age of consent.

Mrs Justice Steyn found that the tweet meant that Vine has a sexual interest in children, and he defends paedophiles (removing the causative link that Vine had asserted).

Oliver v Duffy [2024] EWHC 2590 (KB)

Oliver is a 61-year-old man. He sued Duffy claiming that she had called him a paedophile in a pub.  Duffy’s case was that she had said “go away you horrible peedo [sic].  Mrs Justice Hill accepted Duffy’s version of what was said.

Oliver said this meant that he (Oliver) was a paedophile, i.e. that he had a sexual interest in children.  Duffy gave evidence that what she meant was that Oliver was a dirty old man, and that is what the words meant.

Mrs Justice Hill found that the words spoken meant that Oliver was a dirty old man, and more specifically that he was a man of a certain age who subjected younger women to unwelcome sexual interest.

Comparison and analysis

These meaning determinations did what many meaning determinations do: they resolved the claims entirely (in practical terms, if not in strict legal terms).  Once Fox’s tweet had been held to mean that Blake and Seymour were actual paedophiles, he had no prospect of proving his allegations were true (because they were not) or honest opinion.  Once Barton’s tweet had been held to mean that Vine was an actual paedophile, similarly he had no prospect of defending the claim and it was settled before a final trial.

Once Duffy’s name-calling was held not to mean that Oliver was an actual paedophile, but instead a that he was a dirty old man, Oliver’s claim failed on technical legal grounds. As this was a slander claim, it was only actionable per se , i.e. without a claim for special damage (tangible financial loss) if the defamatory imputation was one of criminality for which Oliver could be made to suffer physically by way of punishment (e.g. imprisonment).  Being a dirty old man is not so punishable, and so the slander was not actionable.  The claim would also have failed for other reasons that go beyond the scope of this blog.

This demonstrates how critically important the decisions on meaning are.  It is also shows that outcomes can be unpredictable and, even, arguably inconsistent.

Whilst the Blake meaning decision was not particularly controversial at the time, a number of commentators observed that the term ‘paedophile’ is not always used literally, and is often used as an insult. Indeed, in 2019 a Californian jury reached this conclusion after Elon Musk referred to a British cave diver as a ‘pedo guy’ in a tweet, accepting Musk’s evidence that "pedo guy" was a common  term of abuse in South Africa, where he had grown up.  ‘Mere vulgar abuse’ is not actionable in defamation because, without more, it is unlikely to cause reputational injury (see for instance, Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB))

The decision in Vine has attracted more scrutiny.  Readers of a certain age or disposition will be familiar with the comedy TV series The Inbetweeners, which coined the term ‘bus wanker’ as a form of abuse.  It may be that that ‘bike nonce’ was derivative of this.  Whether this was the case (and, if so, whether it was intentional or not), it certainly seems likely that a considerable proportion of the tweet’s readership would not have taken the statement to be a literal allegation of paedophilia.  However, the words that followed - ‘pedo defender’ - may have been indicative of a more literal meaning.

In Oliver it was completely understandable why Hill J, when considering a verbal altercation in a pub in front of a small number of third parties, decided that calling someone a ‘peedo’ [sic] in such circumstances did not amount to an allegation of actually being a paedophile.  The circumstances in which the words were spoken lent themselves better to a finding that the words were vulgar abuse than either of the Fox or Barton publications, and had Hill J reached that conclusion, one wonders whether the Oliver case would have attracted much attention at all.

Four important points can be distilled from all of this:-

  1. For defamation law to be workable, the Court has to determine one meaning for the words. This is called the single meaning rule.  It is required in order for the defendant to understand the threshold of any defence (e.g. what facts they need to prove are true).   However, in practice the same words can mean different things to different people.  The artificiality of the single meaning rule can lead to an unjust outcome.
  2. Meaning decisions can be inconsistent. Even with a highly specialised judiciary well-used to making these decisions, judges are just people, and all people are different and will interpret things differently.  There is no better example than Hill J and Steyn J deciding the word ‘pedo’ (or ‘peedo’) means different thing.  One could also argue that given the task is to interpret the ordinary everyday meaning of words, that this is the sort of task that is ideal for a jury (representing a cross-section of society), as in the Musk  Indeed, in Blake, Mr Fox unsuccessfully applied for a jury trial, albeit principally because of the allegations of racism made against him and concern that a judge would be bound by the Judicial College’s definition (Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB)).
  3. Allegations of criminality using slang terms or abbreviations might constitute allegations of the criminal offence, but might not. The words themselves may not help to resolve which it is, and it may come down to the circumstances in which the words are spoken/written, and/or the persuasiveness of the lawyers.
  4. The context in which a statement is said or written is admissible when arguing meaning. Knowledge of facts and matters other than the statement is only admissible if a Claimant seeks an innuendo meaning, and can prove (on the balance of probabilities) that the audience of the statement knew the relevant facts and matters.  What is context, and what is an extrinsic fact, is a subject for another blog, but there is undoubtedly a slightly blurred line between them.

 

Click here to find out how our defamation solicitors can help you if you have been defamed or threatened with a defamation claim.

 


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Articles are intended as an introduction to the topic and do not constitute legal advice.