67.
I have found that the meaning is that the band “took great pleasure in using Nazi
symbols” because “great pleasure” is the meaning of the word “delights” and because
the article talked about “Nazi symbols”, and did not talk about “Nazi associated
iconography”.
68.
I have not found that the online article means that Mr Burgon “is actively sympathetic
to Nazi beliefs and ideology, alternatively there are reasonable grounds so to suspect”.
This is because in my judgment this is taking too much from the article and ignores
the “antidote” in the form of his comments about the band at the end of the article. As
appears below in my judgment it is defamatory to say of someone that they have
joined a band that takes great pleasure in using Nazi symbols because of the uniquely
evil nature of the Nazis, but that is a different meaning from saying that the person
joining the band is sympathetic to, or to be reasonably suspected of being sympathetic
to, Nazi beliefs and ideology.
Legal principles relating to serious harm
69.
Section of the 2013 Act is headed “Requirement of Serious Harm” and provides:
“1 Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely
to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that
trades for profit is not “serious harm” unless it has caused or is “) likely
to cause the body serious financial loss.”
70.
The Court of Appeal has addressed the meaning of serious harm in Lachaux v
Independent Print Ltd [2018] QB 594, which is the subject of an outstanding appeal to
the Supreme Court, and Economou v De Freitas [2018] EWCA Civ 2591 at
paragraphs 27-28 and 37-41.
71.
Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that
the statement complained of has caused or will probably cause serious harm to the
claimant’s reputation. It should be noted that unless serious harm to reputation can be
established an injury to feelings alone, however grave, will not be sufficient.
72.
It is right that issues of causation can arise, see Economou v De Freitas at paragraphs
28 and 32. If the meaning is an opinion this will be relevant to the assessment of
serious harm, see by way of example Sube v News Group Newspapers Ltd [2018]
EWHC 1234 (QB). This is because the fact that an article is presented as opinion may
mitigate its defamatory impact, because it is someone else’s evaluation of the
behaviour. In such a case the gravity of the opinion or criticism expressed is relevant,
compare Morgan v Associated Newspapers [2018] EWHC 1725 (QB); [2018] EMLR
25.