the public interest in the conduct and judgment of the Shadow Secretary of State for
Justice and whether Mr Burgon, whilst not being anti-Semitic, had a tin ear to issues
of anti-Semitism; the fact that the article constituted political speech; the steps taken
by Mr Newton Dunn to verify the allegations with Mr Burgon before publication; and
the inclusion, in full, of Mr Burgon’s on the record response to the article.
96.
On behalf of Mr Burgon reliance was placed on a number of matters including: the
fact that the band were not contacted; contact was made to the Labour party press
office and not Mr Burgon’s office; there was no reference to Black Sabbath in the
online article when it was included in the hard copy; in the hard copy the way in
which it was said that the “S”’s appeared to be Nazi symbols was explained together
with the fact that it was a take-off of the Black Sabbath album.
97.
The issue of public interest needs to be considered in relation to the “statement
complained of”, see paragraph 4(a) of the Defamation Act 2013. This means that it is
not just the issue of the judgement of the Shadow Secretary of State for Justice which
needs to be a matter of public interest, which it clearly is, but also the online article as
published. Further for the detailed reasons set out in Economou v De Freitas at
paragraph 85 what a journalist needs to verify before publishing will depend in part on
what he considered his words to mean and I should record that, as appears above, I
accept Mr Newton Dunn’s evidence that he believed that the “S”’s in the Dream Troll
image were Nazi iconography.
98.
So far as responsible journalism is concerned in my judgment Mr Newton Dunn
cannot be fairly criticised for contacting the Labour party press office and not Mr
Burgon’s office. This was a bank holiday Good Friday and Mr Newton Dunn was
right to suppose that if he contacted the press office he would get an answer from Mr
Burgon, which he did.
99.
I also consider that, having regard to the fact he did in fact get a reply from Mr
Burgon, Mr Newton Dunn was entitled not to contact the band. I accept that some
reasonable journalists would have contacted the band but the focus of the story was on
Mr Burgon, and not the band. Further Mr Burgon was able to supply the relevant
information to Mr Newton Dunn. The defence in section 4 of the Defamation Act
2013, which creates a fair balance between freedom of expression on matters of public
concern and the reputation of individuals should not be whittled away by an overly
restrictive approach to responsible journalism.
100.
However in my judgment the online story does not attract the protection of section 4
of the Defamation Act 2013. This is because, having contacted Mr Burgon through
the press office, and having been told about the source of the symbols in the Dream
Troll image, Mr Newton Dunn failed to include that in the online article. As appears
above I have found that Mr Newton Dunn did not at first understand the significance
of the hashtag Black Sabbath above the Dream Troll image on the tweet, but he
properly put the story to the duty press officer. Mr Newton Dunn said that the
response that he was given about the Black Sabbath album cover was off the record. I
do not find that the statement about the Black Sabbath album cover was off the record.
This is because there was nothing in the response to suggest that the comment about
Black Sabbath was off the record. Further there was no suggestion that the earlier
hashtag on the tweet, whose significance should now have been apparent to Mr