Indeed Mr Baldwinson who created the Dream Troll image electronically made it clear
that the Dream Troll image had no political purpose and was not intended to make or
include any political reference and his evidence was agreed.
88.
Further, showing that some persons might consider the use of the “S” in the Dream Troll
image, when taken together with the colour scheme and gothic writing, to be similar to
the “S” in the “SS” Nazi symbol does not show that the defamatory meaning that I have
identified did not seriously harm Mr Burgon’s reputation for the purposes of section 2(3)
of the Defamation Act 2013. This is because, although a story might be made from the
fact that the stylised “S” might be taken to be similar to the “S”’s used in the “SS”
symbol, it is a different and much less serious imputation than asserting that Mr Burgon
has joined a band which as he knew took great pleasure in using Nazi symbols. This is
because one is a Nazi symbol and it is common ground that the Nazis were uniquely evil.
The other is a stylised “S” which is derived from the Black Sabbath album cover which if
placed together with another “S” (which it was not) might resemble the “SS” symbol. No
defence of honest opinion – paragraph 7(d)
89.
In this case the meaning which I have identified is one of fact, and therefore the first
condition set out in section 3(2) of the Defamation Act 2013 cannot be satisfied.
90.
In this respect I note that the opinion sought to be defended, namely a terrible
misjudgement was based on the “facts” that Mr Burgon joined a band which he knew
took great pleasure in using Nazi symbols. In some respects there is no need to say
that joining a band which you know takes great pleasure in using Nazi symbols is a
terrible misjudgement because every right minded person will form a very negative
opinion of the person who has joined such a band. I have already found that these
facts were not true but it is not necessary to get into an analysis of whether the facts
referred to in section 3(3) on which the honest person could have held the opinion,
need to be the facts set out in the article because this is not a case of opinion.
91.
There was an issue about whether Mr Newton Dunn held the opinion that Mr Burgon
had made a terrible misjudgement. In the email sent to Ms Street Mr Newton Dunn
asked “is it really appropriate for a shadow justice secretary to be associating with a
band that uses Nazi iconography to promote itself?” suggesting that Mr Newton Dunn
thought that it was inappropriate for Mr Burgon to be associating with the band and
that the band used Nazi iconography to promote itself. After being told about the
Black Sabbath album cover Mr Newton Dunn said “it’s still Nazi iconography, is it
not, to use the SS symbol and German military font in the band’s name?” showing
that Mr Newton Dunn believed the Dream Troll image to use Nazi iconography. The
letter dated 28 July 2017 stated that Mr Newton Dunn did hold, and continues to hold,
“the opinion that it was unwise of your client to join a band which uses Nazi symbols
given he is a prominent member of the Labour party”. In the defence at paragraph 7 it
was pleaded that the opinion was that “the Claimant had demonstrated terrible
misjudgment and exposed himself to ridicule by associating himself with a band
which, as he knew, uses Nazi associated iconography in its promotional material”. In
further information dated 16 January 2018 it was identified that the opinion identified
in paragraph 7 of the defence was held by Mr Newton Dunn. As noted above Mr
Newton Dunn said “when I looked at the picture of the band’s album it seemed to me
it was using Nazi iconography. I thought that this called into question the Claimant’s