My determination on serious harm – paragraph 7(b)
73.
I find that the online article was defamatory of Mr Burgon at common law. This was
because the online article would have substantially affected in an adverse manner the
attitude of other people to Mr Burgon. The article itself makes it clear that Mr Burgon
faced scorn. In my judgment it is defamatory to say that a person joined a band which
as he knew took great pleasure in using Nazi symbols. This is because the Nazis
were, as was common ground between the parties, uniquely evil and no right minded
person would join a band which he knew took great pleasure in using Nazi symbols.
74.
In my judgment the publication of the online article to the thousands of persons who
read it has caused serious harm to the reputation of Mr Burgon. This is an inevitable
inference to be drawn from the publication of an online article with the meaning
identified above. There was no evidence before me at the trial which would rebut the
inference of serious harm that was to be drawn from the publication of the online
article.
75.
I should record that in my judgment the publication of the article in the newspaper
does not affect this conclusion. The words used in that article are different, there is
express reference to Black Sabbath as the source for the Dream Troll image and the
symbols used, and the meaning of the newspaper article is different from the online
article. Further there is nothing to suggest that the readership of the online article
would have mirrored the readership of the newspaper.
Legal principles relating to truth, honest opinion and public interest
76.
I will address the relevant legal principles relating to the defences below. I will deal
with truth first because I have determined that the facts set out in the article are
defamatory and have caused serious harm.
77.
Truth is a defence to imputations in libel actions. Section 2(1) of the Defamation Act
2013 provides that it is a defence to an action for defamation to show that the
statement complained of is substantially true. Section 2(3) of the Defamation Act
2013 provides that: “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”. It is important to
isolate the essential core of the libel and not to be distracted by inaccuracies around
the edge if the imputations are substantially true.
78.
Section 3 of the Defamation Act 2013 provides for the defence of honest opinion. So
far as is material section 3 provides: “(1) It is a defence to an action for defamation for
the defendant to show that the following conditions are met. (2) The first condition is
that the statement complained of was a statement of opinion. (3) The second condition
is that the statement complained of indicated, whether in general or specific terms, the
basis of the opinion. (4) The third condition is that an honest person could have held
the opinion on the basis of – (a) any fact which existed at the time the statement
complained of was published; (b) anything asserted to be a fact in a privileged