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Case Law: Burgon v News Group, Shadow Secretary of State for Justice successful in libel action against “Nazi symbols” allegation – Persephone Bridgman Baker
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The case of Richard Burgon MP v. News Group Newspapers Limited and Thomas Newton Dunn ( EWHC 195 (QB)) was a libel claim relating to an online article published by The Sun, which made allegations that the MP for Leeds East and Shadow Justice Secretary had joined a band that delighted in Nazi symbols. It was common ground at trial that the Defendants did not believe that Mr Burgon was a Nazi nor were there any grounds to believe as such.
Mr Burgon was successful in his claim for libel, with Dingemans J awarding £30,000 in damages and an injunction, jettisoning the sections 2, 3 and 4 Defamation Act 2013 defences run by the Defendants during the course of a three day trial.
At trial, the Defendants asserted that Mr Burgon, “a man who aspires to hold the highest legal office in the land… demonstrated serious and terrible misjudgement” in providing a guest appearance on a track written and performed by friends of his in the Leeds band ‘Dream Tröll’, who they alleged used Nazi iconography in promotional posters. Instead, Dingemans J found that the allegations were false, appreciating the heavy metal parody in the social media image produced by the band that was at the centre of the claim.
The case concerns two images, one produced by band Dream Tröll and published on Twitter and Facebook under the hashtag #blacksabbath, and an album cover produced by the infamous heavy metal band Black Sabbath. The Dream Tröll image was brought to the attention of Sun journalist Mr Newton Dunn by a Labour councillor source who described the potential story as “not exactly Watergate” but “an amusing little story involving Richard Burgon. He has this band and the band likes a bit of Nazi iconography”. Mr Newton Dunn contacted Mr Burgon via the Labour Party Press Office, and identified the alleged use of “Nazi iconography” by Dream Tröll. Mr Burgon, a heavy metal music aficionado, immediately recognised it as a parody of the Black Sabbath album cover.
The alleged Nazi iconography was put forward at trial as being the use of the Nazi SS “Schutzstaffel” symbol, Gothic font and a black, white and red colour scheme. The two images are above. It was common ground by trial that Mr Burgon had not seen the Dream Tröll image until he was alerted to it by Mr Newton Dunn.
Mr Burgon’s political advisors informed Mr Newton Dunn of the link between the images, even providing a link to the Black Sabbath album cover. Mr Newton Dunn asked for a For Publication statement, which was provided and included in the published article. Mr Newton Dunn then approached Conservative MP Charlie Elphicke, with what he described in evidence as a “fair appraisal of the story”, but failed to provide him with either the Dream Tröll image or any reference to the Black Sabbath album cover. Mr Elphicke described Mr Burgon’s association with the band as a “terrible misjudgement”, urging him to “distance himself from this band as soon as possible”.
The article was initially published online, under headline “Reich and Roll: Labour’s justice boss ridiculed after he joins a heavy metal band that delights in Nazi symbols”. The online article included the For Publication statement provided by Mr Burgon, but failed to include any reference to the Black Sabbath album cover, and indeed reproduced the Dream Tröll image without the ‘blacksabbath’ hashtag. It was argued by Mr Speker for the Claimant that the removal of the meme from its published context was misleading and distorted, and denied its creator’s intention.
The hard copy article, published the next day, was sub-edited to include a reference to both the Black Sabbath album cover and the Black Sabbath image. The sub-editor in question was never identified by The Sun and only speculative evidence was provided by Mr Newton Dunn about why that decision might have been taken. Despite a legal complaint being made by Mr Burgon, the online article remained online, unamended, until after proceedings had been served.
In response to the legal complaint, Senior Legal Counsel for the Sun denied that the article was defamatory, describing it as “innocuous and light-hearted”. When proceedings were issued in libel, malicious falsehood and data protection, the Defendants pleaded defences of truth (s.2 Defamation Act 2013), honest opinion (s.3 Defamation Act 2013) and public interest (s.4 Defamation Act 2013, replacing the old Reynolds test of responsible journalism), holding the article out to be a serious political story, and not “light-hearted”.
Throughout trial, Mr Newton Dunn maintained that the context of the Dream Tröll image was irrelevant, and that it was his honest opinion that the image was still Nazi iconography, even stating in cross-examination that there was no difference between saying that the band ‘used the actual SS symbol’ or used a symbol ‘similar to the SS symbol’.
The parties had pleaded different cases respectively on the meaning of the online article. Dingemans J first provided his views on the single meaning of the words complained of; “determined from the viewpoint of the layman, not by the techniques of a lawyer” (Jeynes v. News Magazines Limited  EWCA Civ 130). He determined the meaning to be somewhere between both parties’ cases, as “Mr Burgon joined a band which as he knew took great pleasure in using Nazi symbols”.
He held that meaning to be defamatory at common law, and the publication to many thousands of people (somewhere around 8,000 unique readers on the evidence) as being sufficient to cross the section 1(1) Defamation Act 2013 threshold of ‘serious harm’. There was no evidence adduced to rebut the inference of serious harm, although issues of causation were raised by the Defendants.
The defences of truth, honest opinion and publication on a matter of public interest all failed.
- Section 2: Dingemans J found that the Dream Tröll image did not use Nazi symbols, and that there was no evidence to suggest that the band thought that the Dream Tröll image contained Nazi symbols nor that they took great pleasure in using Nazi symbols. The article was therefore neither true nor substantively true.
- Section 3: With regard to honest opinion, Dingemans J found that the meaning was one of fact, not one of opinion, and therefore the honest opinion defence failed at the first condition set out in section 3(2) Defamation Act 2013.
- Section 4: Dingemans J found that Mr Newton Dunn, having been told about the Black Sabbath reference, was not entitled to ignore the source of the Dream Tröll image and the ‘blacksabbath’ hashtag, and those references had to be included in order to obtain the protection of section 4 and to comply with responsible journalism.
Damages for the libel claim were awarded at £30,000, beating the Claimant’s own Part 36 offer of £25,000 made in late 2018. An injunction was granted to prevent further publication of the words complained of.
The claim in malicious falsehood was dismissed, on the basis that Mr Newton Dunn was acting honestly when he wrote the story, and did not appreciate the significance of the #blacksabbath. However, the Claimant had made a Without Prejudice Save as to Costs offer ahead of trial to drop the malicious falsehood claim, in an effort to reach settlement. Mr Burgon’s objective was always to achieve vindication rather than harm Mr Newton Dunn.
An order is yet to be made with regard to costs, but the settlement offers will be a factor for the court in making any decision to depart from the usual costs principles. Carter-Ruck represented Mr Burgon on a CFA.
This was a claim that proceeded to trial within eighteen months, without any interim skirmishes or a PTR, and ran slightly short of its listed three days. In a judgment issued as efficiently, Dingemans J swiftly disposed of the Defendants’ pleaded defences. When one views the Black Sabbath image and the Dream Tröll image side by side, it is perhaps hard to believe that the article in question was published without reference to the parody, let alone that the claim was defended all the way to trial.
The honest opinion and public interest defences raised potentially interesting points which unfortunately did not require full engagement on the facts. On honest opinion, the defence fell at the first hurdle (s.3(2) Defamation Act 2013): the words were facts, not opinion. There was therefore no need for the Judge to consider the second and third conditions, namely that that the statement complained of indicated the basis of the opinion, and whether that opinion was honestly held (ss.3(3) and (4) Defamation Act 2013). The judgment refers to Burki v Seventy Thirty Limited  EWHC 2151 (QB) where the old common law and 2013 statutory defence were considered together with the Guidance Notes on the Defamation Act 2013:
“It was noted that the statement must be a statement of opinion pursuant to section 3(2) of the Defamation Act 2013, which reflects the pre-existing common law. It was noted that sections 3(3) and 3(4) of the Defamation Act 2013 were intended to retain the broad features of the common law defence as to the necessary basis for the opinion expressed “but avoid the complexities which have arisen in case law” in particular as to sufficient truth of the facts on which the comment is based and the need to indicate facts on which the comment is based. The judgment therefore lacks a recent confirmation that a relevant omission can undermine the section 3 defence”.
The Claimant asserted that there is nothing in the now statutory section 3 defence that suggests that the law now allows a defendant to misstate the basis of the opinion and then opine: Christie v Robertson (1889) 10 NSWLR 157:
“the omission of a highly relevant fact may amount to a misstatement of the supporting facts: “it is not comment… grossly to misrepresent the conduct of a public man, and then hold him up to execration for his alleged wrongdoing”. The defence of honest comment will fail if the defendant omits from the statement of facts on which the comment purports to be based some important fact that would falsify or alter the complexion of the facts that are stated”.
The Judge’s finding that the honest opinion defence failed at the first condition meant that this point was not dealt with in respect of section 3.
A similar point was, however, picked up in the decision on section 4, and held to be determinative. Matters raised by either party in respect of the public interest defence were considered by the Judge. Matters including a failure to contact the band, and a failure to contact Mr Burgon directly rather than through the Labour Party Press Office were met with short shrift. However, Mr Newton Dunn’s failure to include reference to the Black Sabbath album cover, in the face of the hashtag and the information provided by Mr Burgon’s political advisor, was fatal to the protection afforded by the public interest defence. Whilst the Judge believed Mr Newton Dunn honestly held the view that the Black Sabbath album cover was not relevant, he did not consider the reference ‘off the record’ and held that it should have been included:
“In my judgment Mr Newton Dunn has convinced himself that the statement was off the record in an attempt to rationalise what was otherwise an inexplicable failure to include the reference to Black Sabbath in the online article.”
Mr Burgon MP has released a social media statement on the victory:
“Delighted to have won my High Court case against The Sun. Their slur attempting to link me to “Nazi symbols” was held to be false and defamatory. The Judge ordered The Sun to pay £30,000 in damages. With that I’ll fund a paid justice internship for a young person from my local area.”
Richard Burgon MP was represented by Nigel Tait and Persephone Bridgman Baker of Carter-Ruck, and Adam Speker (5RB).
from Inforrm's Blog https://inforrm.org/2019/02/07/case-law-burgon-v-news-group-shadow-secretary-of-state-for-justice-successful-in-libel-action-against-nazi-symbols-allegation-persephone-bridgman-baker/
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