Preliminary Judgment

The preliminary judgment (Kirkegaard v Smith [2019] EWHC 3393 (QB)) was made public on December 11 2019 (I had access to a draft a week earlier). The preliminary issues trial took place on November 26 2019; an earlier hearing on May 22 2019 was adjourned because of a procedural error. The trial was to determine the “natural and ordinary meaning of the words complained of” in my posts (Kirkegaard v Smith supra [21]) and whether they were written as statements of fact, or opinion. Emil Kirkegaard lost on both issues and the judge rejected his submissions, while accepting mine and criticised him for taking my posts out of context – Kirkegaard v Smith ⚖️ provides an overview of the lawsuit, timeline, and my legal defence. The lawsuit did not reach summary judgment because Kirkegaard discontinued. He was not awarded any damages and has to pay my legal costs; below are my notes under the judgment.

Preliminary JudgmentBAILII5RBCaseMine.

The Honourable Mr Justice Julian Knowles:

Introduction

[1] This is a trial of meaning and fact/opinion as preliminary issues in a defamation claim brought by the Claimant, Emil Kirkegaard, against Oliver Smith, the Defendant.

[2a-b] The Defendant applies under CPR r 3.1(2)(i) for a ruling on the following preliminary issues:

a. whether the words pleaded in [3] of the Particulars of Claim (PoC) bear the meanings pleaded in [4], [9], and [14]; and

b. if so, whether those meanings are defamatory of the Claimant.

I applied for a preliminary issues trial on February 8 2019. Kirkegaard agreed to the hearing.

[3] I can state the factual background fairly briefly.

[4] The Claimant describes himself in his PoC as a data scientist. He is also a blogger who regularly writes and speaks on a wide range of topics including psychology, sociology and genetics. He has written on several controversial topics including the IQ of different migrant groups, and the morality of child pornography.

There is no evidence Emil Kirkegaard is a scientist by paid work or qualification.*

*In 2016, his alma mater asked him to remove this false description from his Google Plus profile.

[5] The Claimant and the Defendant are not known personally to one another, but they have often disagreed online.

Unfortunately the judge did not provide a history of this online dispute between myself and the Claimant which dates back several years. For example, almost a year prior to Kirkegaard filing the defamation lawsuit against me on December 7 2018 – I had sent him a cease and desist letter and was suing him for copyright infringement. He stole numerous photos of me and uploaded them without my permission to websites (including his own) with captioned slurs. I have continued to file DMCA complaints (takedown requests) against his website, see here, here, and here. On March 8 2022, I reported Kirkegaard to the Danish Data Protection Agency for breaching my privacy. The DDPA did not take action against Kirkegaard because his website “is run purely on the course of a purely personal or household activity” but agreed I had a case for defamation. This issue though, falls outside “competence of the Danish DPA”.

[6] On 3 February 2018 someone called Anatoly Karlin published a blog/article on the website unz.com (the Karlin blog). In the blog Mr Karlin (inter alia) criticised things which the Defendant had written about him. This blog attracted a significant number of comments from numerous internet users, including the Defendant. Three of the publications that the Claimant complains of (Posts 1, 2 and 3 as they are called in the PoC) were published by the Defendant in this comment thread.

This is quite misleading. Anatoly Karlin is a close friend of Kirkegaard’s, who began attacking me on his blog at The Unz Review, on January 11 2018. A month later I left some comments on the blog, mostly defending myself, against false and scurrilous allegations made by Karlin which he copied (almost verbatim) from Emil Kirkegaard’s website linked in the same article. Karlin further copied photos of myself Kirkegaard uploaded with captioned slurs. I have filed two DMCA complaints against Karlin’s website for copyright infringement i.e., here and here. The only way to remove the photos is if I get a court order and/or file an injunction, although this is going to be difficult since Karlin lives in Russia. Like Kirkegaard, Karlin has been in an internet feud with me for years and has spent many hours spreading lies and untrue rumours about me; they range from false claims about my mental health, political views and sexuality.

[7] Earlier, on 11 January 2018, a tweet was published from the Defendant’s Twitter account (accessible at: http://www.twitter.com/oliveratlantis) which referred to the Claimant. This is the fourth publication complained of by the Claimant in his PoC. This is Post 4.

The tweet was deleted within a short space of time (24 hours).*

*My Twitter account in January 2018 had under 100 followers (currently ~1100).

[8] On 7 December 2018 the Claimant’s Claim Form and PoC were deemed served. The Defendant filed an acknowledgement of service and, after the Defendant’s solicitors drew to the Claimant’s attention dicta of Nicklin J in Morgan v Associated Newspapers Limited [2018] EWHC 1725, the parties consented to having the issues of meaning and whether the words complained of were fact or opinion being dealt with at trial as a preliminary issue.

[9] A hearing took place on 22 May 2019 in which, due to procedural issues, the trial was relisted for 26 November 2019 before me.

[10] The Defendant is represented by Mr Maclean-Jones. The Claimant is represented by Mr Owen-Thomas. I am grateful to both of them for their clear and helpful written and oral submissions.

The Defendant (myself) and the Claimant (Emil Kirkegaard) disagreed on the meaning of my internet posts complained of and whether they were written as statements of fact, or opinion. For this reason, I applied for a preliminary issues trial and Kirkegaard accepted this hearing which was meant to occur on May 22 2019, but was adjourned and relisted for November 26.

The words complained of

[11] The pleaded words complained of and their allegedly defamatory meanings are as follows. This is the chronological order: for some reason, the PoC pleads them non-chronologically.

The Claimant in his PoC took all my posts out of context to distort their true meanings.

[12] Post 4: 11 January 2018:

[Post 4 can be read here.]

[13] The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children, a stalker, and that he acts in a predatory sexual manner that is socially unacceptable.

My words in Post 4 did not have this meaning nor would a reasonable reader think the same.

[14] Post 2: 3 February 2018, 4.58pm:

[Post 2 can be read here.]

[15] The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children and therefore a contemptible person.

My words in Post 2 did not have this meaning nor would a reasonable reader think the same.

[16] Post 3: 3 February 2018, 10.33pm:

[Post 3 can be read here.]

[17] The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children.

My words in Post 3 did not have this meaning nor would a reasonable reader think the same.

[18] Post 1: 4 February 2018, 3.31am:

[Post 1 can be read here.]

[19] The Claimant says that in their natural and ordinary meaning these words meant that the Claimant was a sexual abuser of children.

My words in Post 1 did not have this meaning nor would a reasonable reader think the same.

Legal principles

[20] Before turning to the parties’ contentions, I will set out the material legal principles. These were not in dispute. They are familiar and well-established.

Determining meaning

[21] The principles in relation to meaning were summarised by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [11] – [15] (internal citations omitted):

[Quotes can be read here.]

[22] The courts have emphasised the importance of avoiding an overly technical analysis of the words complained of where a judge is required to determine meaning. The authors of Gatley on Libel and Slander (12th Edn) explain at [3.14] that:

[Quote can be read here.]

[23] The meaning of the words must be ascertained in the context of the publications complained of. As Nicklin J said in Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) at [15]:

[Quote can be read here.]

[24] The fundamental importance of context was also emphasised by the Supreme Court in Stocker v Stocker [2019] 2 WLR 1033, [38]:

[Quotes can be read here.]

[25] As I shall explain, Posts 1, 2 and 3 were accompanied by hyperlinks to other internet content. This content may, if appropriate, be taken into account as part of the context of the words complained of. The legal position was set out by Nicklin J in Greenstein, supra[16] – [18]:

[Quotes can be read here.]

The judge highlighted importance of hyperlinks when determining meaning of my posts.*

*Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) [16, 17, 18].

Statement of fact v expression of opinion

[26] I turn to the issue of fact versus opinion. The relevant principles were summarized in Koutsogiannis, supra, [16] – [17]:

[Quotes can be read here.]

[27] In Burgon v News Group Newspapers [2019] EWHC 195 (QB), [61], Dingemans J (as he then was) said:

[Quote can be read here.]

[28] Also relevant to this topic is the following passage from the judgment of Nicklin J in Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB), [26] – [27]:

[Quotes can be read here.]

[29] Paragraph [18] of Greenstein, supra, is also relevant:

[Quote can be read here.]

[30] Finally, it has been said that if the subject matter of the words complained of is a corpus of published work emanating from the claimant in a defamation claim, then that is a factor which may tend to weigh in favour of the words being regarded as comment: Butt v Secretary of State of the Home Department [2017] EWHC 2619 (QB), [19]; Keays v Guardian Newspapers Ltd [2003] EWHC 1565 (QB)[48].

Hyperlinks can determine whether a comment was written as a statement of fact, or opinion.

The words complained of set in context.

[31] Mr Maclean-Jones submitted that the Posts had to be read along with the hyperlinked material with which they were associated. Mr Owen-Thomas disputed whether a reasonable reader would have read that material. I will address this issue later, but I should at least set out the words complained of in the context in which they appeared, including the hyperlinked content. I will deal with them in chronological order. For Posts 1, 2 and 3 I have italicized the words complained of. I have been assisted in this exercise by a table which the Claimant and Defendant agreed pursuant to Warby J’s order of 22 May 2019.

Three of my posts contained hyperlinks (Posts 1, 2 and 3). My barrister emphasised this in my defence and argued the whole context of my posts (including hyperlinked material) must be taken into consideration by the judge, to understand meaning of the words complained of.

[32] Post 4 is a tweet which was free-standing and was not accompanied by any hyper-linked material. However, the Defendant’s case, as set out the table to which I have referred, is that this formed part of a thread of tweets which has since been deleted.

One of the posts Kirkegaard sued me for writing (Post 4) was made on Twitter and “formed part of a thread* of tweets which has since been deleted” (Kirkegaard v Smith supra [32]). Kirkegaard, however, failed to mention this which misconstrued its true meaning – it should have been read in context of the larger discussion. Kirkegaard relied on a screenshot of my deleted tweet, but deceptively did not include any of the separate tweets, I was responding to.

*The judgment does not quote other tweets in this thread.

[33] The next publication was Post 2, published on 3 February 2018 at 4:58pm. It is a response by the Defendant to an assertion by Mr Karlin (as reported by the Defendant in an article/blog and quoted in the Karlin blog) that the Claimant had been misquoted or taken out of context by ‘SJWs’ (social justice warriors) about his view on paedophilia. According to Wikipedia, ‘SJW’ is a pejorative term for an individual who promotes socially progressive views, including feminism, civil rights, and multiculturalism, as well as identity politics.

[34] In Post 2 the Defendant stated:

[Quote and hyperlink can be read here.]

Anatoly Karlin published a fake news article on his blog (at The Unz Review) titled “SJWs Attack UCL Neo-Nazi Cabal” on January 11 2018 and he attacked me in the article. A month later I showed up in the comment section of his blog, on another article, rebutting his claims. As I explained in Post 2 – this was not a political issue. Karlin, however, calls individuals who disagree with him online, ‘social justice warriors,’ and he labelled me an ‘SJW’; despite being clueless about my political views (needless to say, I do not identify with this pejorative term).

[35] The hyperlink at the end of Post Two led to an article which stated the following (inter alia):

[Quote can be read here.]

The hyperlink mentions a blog post by Kirkegaard written in 2010 which supports legalising animated child pornography in Scandinavian countries where it is banned. This hyperlinked material was excluded by Kirkegaard but it reveals the correct meaning of Post 2 (see below).

Screenshot of Emil Kirkegaard’s blog post (image used under §30[1] Copyright Designs and Patents Act 1988). Kirkegaard wrote a blog post arguing to legalise animated child pornography in Scandinavian countries where it is prohibited and has also written comments sympathetic to legalising the possession of real child pornography.

[36] The third publication was Post 3, published on 3 February 2018 at 10:33. It is a reply by the Defendant to another user with the name ‘@DFH’ who had earlier (at 6:09pm and 7:11pm) posted messages in the comment thread directed at the Defendant that was critical of him and called him a liar. @DFH had said that the Claimant was not a ‘fan’ of animated child pornography. In reply, the Defendant published the following:

[Quote and hyperlink can be read here.]

This user (‘DFH’) was an anonymous troll leaving comments on Karlin’s blog. I left him some replies. In Post 3, I provided three hyperlinks, but Emil Kirkegaard completely ignored them.

[37a-c] The hyperlinks in Post Three led to the following:

[Quotes can be read here.]

The hyperlinked material quoted Emil Kirkegaard’s most infamous and disturbing blog post (dated 08/09/2012) in which he suggested a compromise for paedophiles: “having sex with a sleeping child without them knowing it (so, using sleeping medicine). If they dont[sic] notice it is difficult to see how they cud[sic] be harmed, even if it is rape” (Kirkegaard later claimed in 2018 this was a “thought experiment”, but this hardly makes it less creepy). Several other controversial comments Kirkegaard made were also quoted or paraphrased in the hyperlinks.

Screenshot of Emil Kirkegaard’s blog post (image used under §30[1] Copyright Designs and Patents Act 1988). On January 14 2018 he added a disclaimer to the same post, clarifying it “describes hypothetical scenarios and courses of action, not any actions endorsed or recommended by me either then or now”. However, I never read this prior to writing the four posts complained of (note that Post 4 on January 11 2018 predated the disclaimer).

[38] The final comment, Post 1, was published on 4 February 2018 at 3:31am and was a reply to a post by @DFH at 10:48pm directed to the Defendant in which he disputed that the Claimant was a ‘fan’ of animated baby porn. This post by @DFH was in response to the Defendant’s Post 3 (which had been posted 15 minutes earlier). The Defendant wrote:

[Quote can be read here.]

This post was a response to an earlier post and included a quote from a hyperlink. The post itself further contained a hyperlink to DFH’s post (which in turn, was a response to Post 3).

[39] So far as the Claimant is concerned, his position is that for Posts 1, 2 and 3 the reasonable reader would just have read the Karlin blog and notable comments but would not have taken the trouble to read the hyperlinked material before forming a judgment about the meaning of the Post in question. In relation to Post 4, he contends that the reasonable reader would have formed their impression of its meaning by reading the tweet alone.

The Claimant was mistaken. A reasonable reader would have read the hyperlinked material.

The parties’ contentions

The Defendant’s case

[40] On behalf of the Defendant, Mr Maclean-Jones submitted that the words complained of in the four Posts are expression of opinion and not statements of fact, and mean the following.

[41a-b] Post four:

a. the Claimant has controversial opinions on the acceptability of paedophilia due to his own writings in support of child rape; and
b. the Claimant is a weird and vindictive individual due to his conduct in repeatedly smearing and attacking the Defendant on the Claimant’s website.

This is the correct meaning of Post 4, opposed to what Kirkegaard falsely pleaded in his PoC. Concerning (a), my opinion was based on his notorious blog post in which he suggested as a “hypothetical” – raping children when asleep as a compromise for paedophiles. The meaning of (b), was based on the fact the Claimant has spent years maligning and smearing me on his website; this provoked me, to writing the posts complained of (harassment has continued to the present day on the same website). Despite defaming me on his website, Kirkegaard filed a frivolous defamation lawsuit when I wrote an honest opinion about him he did not like. He is someone who can dish it out but cannot take it. My rebuttal to his blog post can be read here.

Screenshot of Emil Kirkegaard’s blog post (image used under §30[1] Copyright Designs and Patents Act 1988). Kirkegaard began attacking me on his website on December 14 2017 (all my posts were evidently written under provocation). Kirkegaard later deceptively removed a time stamp on his blog post about me, to conceal the date.

[42] Post Two: the Claimant is an apologist for paedophilia given his widely reported writings, comments and publicly taken positions including his comments on child rape, his blog in support of possession of animated child pornography, and his criticism of a number of countries for banning child pornography.

This is the correct meaning of Post 2, opposed to what Kirkegaard falsely pleaded in his PoC.

[43] Post Three: the Claimant is an apologist for paedophilia given his writings, comments and publicly taken positions including his essay defending animated child pornography, his ambiguous position on the legality of possessing child pornography, his view that paedophilia relates solely to pre-pubescent children and so treats sex with teenagers below the age of 16 as not paedophilia, and the essay in which he proposed that a compromise for paedophiles was to rape children while they sleep.

This is the correct meaning of Post 3, opposed to what Kirkegaard falsely pleaded in his PoC.

[44] Post One: the Claimant is an apologist for paedophilia given his widely reported writings, comments and publicly taken positions including his support for possessing animated child pornography, his criticism of a number of countries for banning child pornography and his view that paedophilia relates solely to pre-pubescent children and so treats sex with teenagers below the age of 16 as not paedophilia.

This is the correct meaning of Post 1, opposed to what Kirkegaard falsely pleaded in his PoC.

[45] He submitted that the Defendant’s suggested meanings as set out above are firmly grounded in the context of the words complained of by the Claimant. He made the following points.

[46] Posts 1, 2 and 3 were published on the comments thread of a website called unz.com. The Defendant says in his witness statement ([6]) that this is a blogging platform which describes itself as an alternative to the mainstream media. Mr Maclean-Jones said it is evident from the size and scale of the comments thread that the words complained of were published on a website with a hardcore following of regular readers who not only go on the website, but interact regularly via unz.com comments threads.

[47] He said it is also a website that is very difficult to stumble upon by accident (unlike say, an extremely popular Twitter thread made in response to a tweet by a celebrity). The ordinary and reasonable reader of this thread would be someone with a direct interest in alternative news who would have taken a conscious decision not only to view the Karlin blog from 3 February 2018, but also the substantial comment thread below it.

[48] He further submitted that when viewing the comment thread containing Posts 1, 2 and 3, it is obvious that they were made as part of a general debate with other unz.com users about comments that the Claimant had placed into the public domain. He said the discussion was in-depth, with many contributors including hyperlinked sources and many people making multiple contributions. He also said that comments linked with each other as responses, etc, which were designed to be read in context. In short, he said the thread was intended to be a forum for serious discussion.

[49] Overall, the Defendant submitted that the ordinary reasonable reader would have viewed in some detail the publications complained of, including clicking on the hyperlinked material that he had presented as evidence in support of his opinion; and viewed the article and additional comment posts that preceded posts one to three.

[50] Mr Maclean-Jones made a number of points in relation to each Post. For example, he said Post 2 made clear it was an expression of opinion that the Claimant is a paedophilia apologist in response to an allegation that the Claimant had been smeared by ‘social justice warriors’. He said in relation to Post 3 that this was clearly an ‘inferred opinion’ that the Claimant is an apologist for paedophilia in which the Defendant had set out his reasoning. He said that Post 1, which was a response to @DFH, was an expression of inferred opinion in which the Defendant clarified his remarks in Post 3 in the face of challenge by @DFH. In relation to Post 4, Mr Maclean-Jones emphasised this was a Twitter message and drew my attention to what he called the ‘idiosyncratic’ rules about how such messages were to be analysed, eg, Warby J’s comments in Monroe v Hopkins [2017] EWHC 433 (QB), [35] where he said an ‘impressionistic approach’ was required to the interpretation of tweets.

Everything I said in my legal defence and my barrister argued was verified by the blog posts written by Kirkegaard; I was relying on them to form an opinion, quoted in the hyperlinked material (Post 1, 2 and 3). A reasonable reader would likely have clicked on the hyperlinks, furthermore, I provided a quote from Kirkegaard’s 2012 blog post in Posts 1 and 3. It seems straightforward, an ordinary reader would click on the hyperlinks (I was quoting from them).

[51] He therefore invited me to conclude that the meanings of the words complained of are the Defendant’s meanings, and that the meaning in each case is one of opinion and not fact.

This is true. My words in the posts complained of, never meant Kirkegaard is a sexual abuser of children, but that he is an apologist for paedophilia. This was my opinion at the time based on reading Kirkegaard’s distasteful blog posts on child rape and animated child pornography. Kirkegaard also wrote he favours reducing age of consent to “13 year olds or start of puberty” (puberty on average begins around 11 in girls) and has described age of consent as a “fiction”. I was not the only individual who read these comments and formed an opinion, for example, Stewart Lee in The Guardian (on January 14 2018) similarly described Kirkegaard as a “far-right paedophilia apologist called Emil”. The scientist PZ Meyers also wrote a blog post about Kirkegaard in which he criticised his writings on child pornography and paedophilia in more extreme words; however, Kirkegaard never filed a lawsuit against Lee or Meyers but only me.

The Claimant’s submissions

[52] On behalf of the Claimant, Mr Owen-Thomas responded as follows.

[53] In relation to context, he said that it was not accepted that a reasonable reader would have read the hyperlinked articles and all the posts before the comments complained of. He said even if this was so, the Defendant could not rely on other defamatory posts to give context to his publication. He submitted that when the impression given is so stark (that the Claimant is a paedophile) it is unreasonable to conclude that a reader will reign back from that other than by a similarly stark disclaimer or modifier to the meaning. He said the reality is that the reasonable reader is likely to read the Karlin blog, above which the comments are posted, and significant comments which attract their interest, and no more.

[54] On the question of opinion versus fact, Mr Owen-Thomas said that the meaning contended for by the Claimant in relation to each post is straightforward: he is accused of being a paedophile. He said that is a stark allegation of fact. He said that the Defendant’s suggested opinion meanings were inferential rather express statement and such a concept was ‘difficult’: Tinkler, supra, [37].He said that the overriding rule when dealing with both meaning and the question whether a statement is factual or an opinion is encapsulated in the principle [16(iii)] of Koutsogiannis, supra, namely, how the reasonable reader would respond to the words.

[55] Applying the principles to the facts, Mr Owen-Thomas submitted that the meaning of each of the Posts stands alone and is obvious in each case, ie, that the Claimant is a paedophile. He says that the Defendant’s suggestion that all he was doing is expressing the opinion that the Claimant is an apologist for paedophilia is an unwarranted gloss. He said that in order for the Defendant to have been able to establish that he was expressing an opinion, the Defendant should have set out, at least in broad terms, the basis for that opinion. He did not do so, but merely referred to matters that he says prove that the Claimant is a paedophile. He said that the Defendant’s statements were not recognisable as comments.

[56] Overall, Mr Owen-Thomas said that applying the relevant legal principles, it is clear that the words would strike the reasonable reader as assertions of fact and carry the meanings pleaded.

Kirkegaard’s submissions were incorrect. Prior to pleading false meanings of my posts in his PoC – he deleted his blog posts I was relying on to form an opinion (I provided screenshots to my solicitor) to disingenuously claim my posts were statements of fact. My opinions were based on his own blog posts which I quoted (plus were quoted in the hyperlinked material). The Claimant’s main argument to ignore the hyperlinks was to misconstrue the meanings of my posts; Kirkegaard also quoted Post 4 out of context by excluding the complete discussion. Kirkegaard’s claim for general damages (£40,000.00) was unrealistic. The advice I received is that even if I lost the lawsuit, I would only have to pay nominal damages since all my posts were written under provocation; the Claimant arguably had a bad reputation to begin with – articles critical of him can be read e.g., here, here, here, here, here, here, here, here, and here.

Discussion

The context and the hyper-linked material

[57] I am quite sure that in order to determine meaning and the issue of fact versus opinion then the whole context of the posts has to be considered, and that includes the hyperlinked material. I reject the Claimant’s submissions and accept the Defendant’s submissions. The authorities that I have set out make clear that on this issue the context is very important. The hyperlinked material properly forms part of that context. I am satisfied that by their very nature, readers of the thread under the Karlin blog would have clicked on the hyperlinks in order to understand the full extent of debate/dispute between the Defendant and Mr Karlin, and the Defendant and @DFH, in order to see whether the material hyperlinked by the Defendant supported his views or whether, as @DFH apparently believed, the Defendant was wrong or lying in his portrayal of the Claimant’s view.

The judge ruled strongly in my favour and accepted my submissions on preliminary issues, while rejecting the Claimant’s submissions – the hyperlinks should obviously have be taken into consideration, to understand the context of my posts (and to determine their meanings).

[58] This was not a website for the casual reader, as Mr Maclean-Jones rightly observed. Nor were the topics covered by the comment thread likely to be ones of interest to such a reader. Rather, this website was one very likely to be of interest only to those with deep set views, many of whom were prepared to commit their views to writing and who would want enthusiastically to take part in debate by scrutinising all that others were posting in order to challenge them on it. As well as what Mr Karlin had (or had not) said about the Claimant, the postings related to a number of Mr Karlin’s views as expressed in the blog, which were on varied topics.

I am not a fan or regular commentator of The Unz Review. I only posted on Karlin’s blog in the comments section in response to him attacking me in an article. I agree it is not a website for the casual reader (I no longer post on the website and requested to delete my comments).

Fact v opinion, and the meaning of the Posts

[59] Post Four: is a tweet published in a conversation with other Twitter users as part of a thread which has been deleted. I accept the point made by Mr Maclean-Jones that an impressionistic approach is the correct approach to such messages, but this approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read it. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter: Monroe, supra, [35]; Monir v Wood [2018] EWHC (QB) 3525, [90].

My single tweet (deleted within a day of being posted) was a part of a larger discussion. The screenshot Kirkegaard provided, misleadingly did not include the full thread of tweets I was responding to in the same thread. He thus isolated one tweet to quote my post out of context.

[60a-c] I am satisfied that a reasonable reader taking an impressionistic approach to this tweet would conclude that it was an expression of opinion by the Defendant about the Claimant. That is because:

a. It offers a conclusion or inference reached by the Defendant that the Claimant’s own writings show that he supports paedophilia and child rape;

b.  It predicts for the future, based on how the Defendant has perceived the Claimant to have acted in the past, how he will react were such a thing to happen;

c.  ‘Sick creep’ is obviously a form of (fairly severe) criticism, bordering on vulgar abuse by the Defendant of the Claimant. But Twitter is a medium where people abuse each other regularly and not in a literal way, and a reasonable reader would know that.

[61a-b] I find the meaning of this Post to be as follows:

a. That the Claimant’s own writings demonstrate that he supports child rape and supports paedophila;

b. That anyone making such an observation can anticipate being the subject of retaliation or unspecified vindictive behaviour but, presumably, online abuse such is the nature of the Claimant’s unpleasant character.

The judge agreed with my submission on the context and meaning of Post 4.

[62] I find that (a) and (b) are expressions of opinion that are defamatory of the Claimant at common law. For the avoidance of doubt, I am not deciding the question of serious harm under s 1 of the Defamation Act 2013.

As clarified by the judge, there was no ruling on whether my posts were defamatory under statute law that requires a threshold of “serious harm”* i.e., harm to reputation (Defamation Act 2013, §1). Post 4 was determined to be an opinion; Kirkegaard’s claim it was a statement of fact was disproven. The judge, ruled Post 4 was defamatory under (English) common law. This isn’t surprising considering the threshold of a defamatory imputation at common law is low-bar and it does not require reputational damage. As was explained in Monroe v Hopkins, “…unless serious harm to reputation can be established an injury to feelings alone, however grave, will not be sufficient” (Monroe v Hopkins [2017] EWHC 433 (QB) [67]). Difference between defamation under common law and statute law is sometimes made in case law e.g., Corbyn v Millett [2021] EWCA Civ 567 [9, 10] and should not be confused as the same thing.

*See explanatory note to section 1 of the Defamation Act 2013.

Predictably, Emil Kirkegaard’s attack-dogs (namely Anatoly Karlin) put their own spin on the preliminary judgment. Kirkegaard’s submissions were rejected and he lost the hearing, but Karlin inaccurately claimed I defamed Kirkegaard when the judge clarified in the judgment there was no decision on whether my posts were defamatory under statute law. I also had a legal defence, honest opinion (Defamation Act 2013, §3) seeming as three of my posts had a basis in hyperlinked material. Under common law there is no “entirely satisfactory definition of the word defamatory…” (Berkoff v Burchill & Anor [1996] EWCA Civ 564) but generally speaking, defamation under common law as often understood in case law – is a publication complained of that affects in an adverse manner the attitude of other individuals towards the claimant (Berkoff supra; Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [95] adds “substantially adverse”); this says nothing about nor requires reputational damage.

[63] Post 2: As I have explained, in order to determine whether Post 2 contains an expression of opinion or statement of fact it is necessary to consider the words complained in the context in which they appear, namely the whole post by the Defendant, including the hyperlinked material. It is artificial for the Claimant to take a single sentence out of context: cf Greenstein, supra, [29].

The judge criticised the Claimant for taking Post 2 out of context by ignoring the hyperlink.

[64a-e] I am satisfied that the ordinary reasonable reader of this post would conclude that it consisted of expressions of opinion by the Defendant about the Claimant, including the words complained of. My reasons are as follows:

a. The clear identification of the Claimant as the subject of the Post;

b. The Defendant was responding by way of counter-argument to an assertion that Mr Karlin had advanced that the Claimant had been the victim of misplaced criticism (‘smear’) by ‘social justice warriors’. Thus, the ordinary reasonable reader would have understood this Post to have been a contribution to an on-going debate;

c. The Defendant set out the basis for his opinion that Mr Karlin was wrong in that view, namely, that the Claimant had been ‘exposed’ as a paedophile by a range of publications across the political spectrum from the far-left to the far-right;

d. The words complained of were a deduction from what had been previously stated: because publications of all shades of politics had reached the same conclusion about the Claimant, the issue was not one of left-right politics, and all were agreed that the Claimant is a paedophile, a view point supported by the hyper-linked article which further supported that view;

e. The Post in part involves criticising that which the Claimant had written and imputing a point of view to him based on his writings about child pornography and that it ought to be lawful.

[65a-c] I find the meaning of Post 2 to be as follows:

a. The Claimant is an apologist for paedophilia;

b. Any right-thinking person would regard him as vile and a paedophile;

c. He is in favour of animated pornography involving babies, supports possession of it which he considers ought to be lawful, and has published material that is critical of Sweden and Norway for having laws against it.

The judge agreed with my submission on the context and meaning of Post 2.

[66] Meanings (a) to (c) are all expressions of opinion and are defamatory of the Claimant at common law.

As expected, the same as Post 4.

[67a-g]

Post 3: I am satisfied that the ordinary reasonable reader of this post would conclude that it consisted of expressions of opinion by the Defendant about the Claimant, including the words complained of. My reasons are as follows:

a. Post 3 is a direct response to a comment made by another user in the thread, @DFH. The ordinary reasonable reader would therefore have understood this Post to be part of an argument/dispute with another user intended to refute and respond by way of argument to the counter-argument put by @DFH including that the Defendant had lied about the Claimant’s view on paedophilia;

b. The Post consisted of a response by the Defendant to a body of writings by the Claimant on the topic of paedophilia;

c. The words complained of came at the end of the post in the course of which the Defendant had cited a number of hyperlinked sources to support his inferred conclusion that the Claimant blatantly supports paedophile;

d. The Defendant had noted the ambiguities in the Claimant’s writings about child pornography. Although he had written an essay defending animated child pornography and had argued for it to be made legal in Norway and Sweden, he had also given an ambivalent response to whether the possession of non-animated child pornography should be illegal, as directly linked to in the first hyperlink in Post 3;

e. The Defendant inferred from some of the Claimant’s writings a viewpoint he describes as being ‘paedophilia apologist;’

f. The third hyperlinked article, which referred to other sources as having noted the Claimant’s support for paedophilia;

g. In addition to the above, the reader of the words complained of would have also read the preceding thread and would have been aware of the additional evidence adduced by the Defendant in Post Two, as well as the general context that underpinned the online debate.

[68a-d]

I find the meaning of Post 3 to be as follows:

a. The Claimant supports legalising baby pornography because he has written an essay defending animated baby pornography;

b. The Claimant is a paedophile apologist because he expressed himself not to have thought about it for some years when asked if he supported possession or legalisation of it, whereas a non-paedophile apologist would have been unquestionably against it;

c. The Claimant has adopted arguments which those who apologise for paedophilia utilise;

d. The Claimant supports the right of adults to have sex with children under the age of consent and that he believes that raping children whilst they sleep would not cause harm.

The judge agreed with my submission on the context and meaning of Post 3.

[69] Meanings (a)-(d) are expressions of opinion and are defamatory of the Claimant at common law.

As expected, the same as Post 4 and 2.

[70a-c] Post 1: I am also satisfied in respect of this Post that the ordinary reasonable reader would conclude that it consisted of expressions of opinion by the Defendant about the Claimant, including the words complained of. My reasons are as follows:

a. Post 1 is a direct response to a comment made @DFH. This comment by @DFH was made in direct response to Post 3, and Post 1 essentially clarifies the Defendant’s remarks in Post 3 in the face of challenge by @DFH. The ordinary reasonable reader would therefore have understood this Post to be part of the on-going argument between @DFH and the Defendant.

b. In a similar manner to Posts 2 and 3 above, I consider the Defendant to be setting out what is clearly an inferred opinion that the Claimant is an apologist for paedophilia, and provides further evidence in support besides that in Posts 2 and 3 which the hypothetical reader would already have read.

c. That the words complained of are an expression of opinion is highlighted by the prefatory words, ‘Like I said, it’s obvious to anyone …’ and the fact that the Defendant supports his opinion by reference to what he considers to be the viewpoint of all mainstream media outlets.

[71a-b] I find the meaning of Post 1 to be as follows:

a. The Claimant supports the possession of animated child pornography and wishes to see it legalised and is a paedophile;
b. His writings concerning pubescent and pre-pubescent children, and the distinction that he draws, supports the viewpoint that he is a paedophilia apologist

The judge agreed with my submission on the context and meaning of Post 1.

[72] Meaning (a) – (b) are expressions of opinion that are defamatory of the Claimant at common law.

As expected, the same as Post 4, 2 and 3.

Addendum

  • Kirkegaard was ordered to pay me £13,500.00 (50% of my legal costs*).
  • My four posts were determined to be opinions with a basis in hyperlinked material; this provided me with a honest opinion defence under section 3 of the Defamation Act 2013.
  • My four posts would most likely fail to meet the “serious harm” threshold for libel under statute law since their meanings were less severe than what Kirkegaard wrongly pleaded.

*Concerning the 50% I was not awarded, I managed to recover £13,403.60 from my solicitor.