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Libel complaints: The legal conundrum of 'fact versus opinion'

18 September 2023
The Media & Communication courts have seen a rise in social media disputes arising from online exchanges which have become more and more common. A recent case  provides an insightful example of how the courts address the fine line between statements of fact and opinion on social media platforms and the potential for rhetorical use of terms.
Blake v Fox [2023] EWCA Civ 1000


The case originated from a Twitter exchange involving the defendant, Mr. Fox ("D") and three claimants, Mr. Blake ("P1"), Mr. Seymour ("P2"), and Ms. Thorpe ("P3"). The dispute arose from a series of tweets posted in October 2020. D criticised a supermarket's actions relating to the Black Lives Matter movement, accusing them of promoting racial segregation and discrimination.

In response to D's tweet, the claimants posted their own tweets accusing him of being racist, with the P3 tweeting that he is 'unequivocally, publicly and undeniably a racist'. This exchange escalated when D retaliated by posting tweets accusing the claimants of being paedophiles and reiterating his accusations.

Legal argument

The legal arguments in this case were twofold. Firstly, the claimants argued that Mr. Fox's tweets accusing them of paedophilia contained factual allegations and were defamatory. On the other hand, Mr. Fox counterclaimed that the claimants' tweets accusing him of racism were defamatory.

Preliminary issues

At the preliminary issues trial, the Judge made several key determinations. 

First, he found that the claimants' use of the term "racist" in their tweets was an expression of opinion rather than a statement of fact.
Second, the Judge ruled that P1 and P2 had established a defence of honest opinion by evidencing the facts upon which their opinion had been based. However, P3 did not satisfy the honest opinion defence because her tweet did not indicate the basis of her opinion. 

Finally, it was concluded that D's tweets about the claimants were defamatory at common law.

Court of Appeal decision

On appeal, the Court of Appeal upheld several aspects of the Judge's ruling. They affirmed that the claimants' use of the term "racist" was a statement of opinion and that D's use of the term "paedophile" had been defamatory.

However, the Court of Appeal made a crucial distinction concerning P3. The court determined that, in D's exchange with P3, the term "paedophile" had been used rhetorically. In other words, it was not intended as a factual allegation but rather as a strong expression of objection in response to being called a racist. Consequently, it was not considered defamatory in this context.


The case of Blake v Fox sheds light on the legal complexities surrounding defamation claims arising from social media exchanges and of the evidential burden upon all parties who seek to rely upon one of the relevant defences. It highlights the importance of distinguishing between statements of fact and statements of opinion in online exchanges. 

Furthermore, the case serves as a reminder of the potential consequences of using strong and potentially defamatory language in the heat of online arguments. 

If you wish to seek further advice on any of the issues discussed please contact our author Olivia O'Kane below.

Further Reading