Neutral Citation Number: [2019] EWHC 3393 (QB)

Case No: QB-2018-000390

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11 /12/2019

Before :

MR JUSTICE JULIAN KNOWLES

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Between :

Emil Kirkegaard Claimant

- and -
Oliver Smith Defendant

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Richard Owen-Thomas (instructed by Samuels Solicitors LLP) for the Claimant

Aled Maclean-Jones (instructed by Debenhams Ottaway Solicitors) for the Defendant

Hearing dates: 26 November 2019

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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.

2. 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.

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.

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

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.

7. Earlier, on 11 January 2018, a tweet was published from the Defendant’s Twitter account
(accessible at: 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.

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.
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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.

12. Post 4: 11 January 2018

“If you merely point out @KirkegaardEmil supports child

rape and is a paedophile (by quoting his OWN words) you
will get stalked by him. He's a malicious individual and sick
creep.”

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.

14. Post 2: 3 February 2018, 4.58pm

“It’s not a right or left issue, but right or wrong: anyone with
a moral conscience can see Kirkegaard is a vile human and
paedophile.”

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.

16. Post 3: 3 February 2018, 10.33pm

“Why are you defending a blatant paedophile ?”

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

18. Post 1: 4 February 2018, 3.31am

“Like I said, it’s obvious to anyone, Kirkegaard is a

paedophile. This is why all mainstream newspapers
described him as either a paedophile-apologist or
paedophile”.

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

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
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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):

“11. The Court's task is to determine the single natural and

ordinary meaning of the words complained of, which is the
meaning that the hypothetical reasonable reader would
understand the words bear. It is well recognised that there
is an artificiality in this process because individual readers
may understand words in different ways …

12. The following key principles can be distilled from the

authorities …

(i) The governing principle is reasonableness.

(ii) The intention of the publisher is irrelevant.

(iii) The hypothetical reasonable reader is not naïve but he

is not unduly suspicious. He can read between the
lines. He can read in an implication more readily than
a lawyer and may indulge in a certain amount of loose
thinking but he must be treated as being a man who is
not avid for scandal and someone who does not, and
should not, select one bad meaning where other non-
defamatory meanings are available. A reader who
always adopts a bad meaning where a less serious or
non-defamatory meaning is available is not
reasonable: s/he is avid for scandal. But always to
adopt the less derogatory meaning would also be
unreasonable: it would be naïve.

(iv) Over-elaborate analysis should be avoided and the

court should certainly not take a too literal approach
to the task.

(v) Consequently, a judge providing written reasons for

conclusions on meaning should not fall into the trap
of conducting too detailed an analysis of the various
passages relied on by the respective parties.

(vi) Any meaning that emerges as the produce of some

strained, or forced, or utterly unreasonable
interpretation should be rejected.

(vii) It follows that it is not enough to say that by some

person or another the words might be understood in a
defamatory sense.
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(viii) The publication must be read as a whole, and any

'bane and antidote' taken together. Sometimes, the
context will clothe the words in a more serious
defamatory meaning (for example the classic "rogues'
gallery" case). In other cases, the context will weaken
(even extinguish altogether) the defamatory meaning
that the words would bear if they were read in
isolation (eg, bane and antidote cases).

(ix) In order to determine the natural and ordinary

meaning of the statement of which the claimant
complains, it is necessary to take into account the
context in which it appeared and the mode of
publication.

(x) No evidence, beyond publication complained of, is

admissible in determining the natural and ordinary
meaning.

(xi) The hypothetical reader is taken to be representative

of those who would read the publication in question.
The court can take judicial notice of facts which are
common knowledge, but should beware of reliance
on impressionistic assessments of the characteristics
of a publication's readership.

(xii) Judges should have regard to the impression the

article has made upon them themselves in considering
what impact it would have made on the hypothetical
reasonable reader.

(xiii) In determining the single meaning, the court is free to

choose the correct meaning; it is not bound by the
meanings advanced by the parties (save that it cannot
find a meaning that is more injurious than the
claimant's pleaded meaning).”

13. As to the Chase levels of meaning, see Brown v

Bower, [17]:

‘They come from the decision of Brooke LJ

in Chase v News Group Newspapers Ltd [2003]
EMLR 11 [45] in which he identified three
types of defamatory allegation: broadly, (1) the
claimant is guilty of the act; (2) reasonable
grounds to suspect that the claimant is guilty of
the act; and (3) grounds to investigate whether
the claimant has committed the act. In the
lexicon of defamation, these have come to be
known as the Chase levels. Reflecting the
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almost infinite capacity for subtle differences in

meaning, they are not a straitjacket forcing the
court to select one of these prescribed levels of
meaning, but they are a helpful shorthand.
In Charman v Orion Publishing Group Ltd, for
example, Gray J found a meaning of "cogent
grounds to suspect’ [58].

15. Finally, in relation to this case, it is necessary to have

regard to the 'repetition rule' (see Brown v Bower [19]-
[32]): namely that where an allegation by a third party is
repeated by the defendant, the words must be interpreted by
reference to the underlying allegations of fact. Context
nevertheless remains critical: Brown v Bower [29].”

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:

“Where a judge has to determine meaning it has been said

that the correct approach is to ask himself what overall
impression the material made on him and then to check that
against the detailed textual arguments put forward by the
parties. Hence in Armstrong v Times Newspapers Gray J
‘deliberately read the article complained of before reading
the parties’ respective statements of case or the rival
skeleton arguments’.”

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]:

“Although the Claimant has selected only parts of the

Articles for complaint, the Court must ascertain the
meaning of these sections in the context of each Article as
a whole.”

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

“38. All of this, of course, emphasises that the primary role

of the court is to focus on how the ordinary reasonable
reader would construe the words. And this highlights the
court’s duty to step aside from a lawyerly analysis and to
inhabit the world of the typical reader of a Facebook post.
To fulfil that obligation, the court should be particularly
conscious of the context in which the statement was made,
and it is to that subject that I now turn.
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[…]

40. It may be that the significance of context could have

been made more explicitly clear in Jeynes, but it is beyond
question that this is a factor of considerable importance.
And that the way in which the words are presented is
relevant to the interpretation of their meaning - Waterson v
Lloyd [2013] EWCA Civ 136; [2013] EMLR 17, para 39.

41. The fact that this was a Facebook post is critical. The
advent of the 21st century has brought with it a new class
of reader: the social media user. The judge tasked with
deciding how a Facebook post or a tweet on Twitter would
be interpreted by a social media user must keep in mind the
way in which such postings and tweets are made and read.”

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]:

“16. In this case, there is an issue about hyperlinks. As made

clear in Warby J’s judgment in Yeo v Times Newspapers Ltd
[2015] 1 WLR 971 [87], contextual material relied upon by
way of hyperlinks is a matter which, as an exception to the
rule that no evidence is admissible when determining the
natural and ordinary meaning, can and should be proved by
evidence. The Defendant has filed a witness statement from
Alex Wilson dated 29 January 2019. In it, Mr Wilson
helpfully sets out each Article, with hyperlinks underlined.
In respect of each hyperlink, he has exhibited what a reader
would have been taken to if s/he had followed the hyperlink.

17. The extent to which hyperlinked material in an article

would be read by the ordinary reasonable reader does not
admit of a hard and fast rule; it is a matter to be judged on
the facts of each case: Falter v Atzmon [2018] EWHC 1728
(QB) [12]-[13]. As with most issues relating to meaning in
defamation claims, context is everything.”

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]:

“16 […] when determining whether the words complained

of contain allegations of fact or opinion, the Court will be
guided by the following points:
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(i) The statement must be recognisable as comment, as

distinct from an imputation of fact.

(ii) Opinion is something which is or can reasonably be

inferred to be a deduction, inference, conclusion,
criticism, remark, observation, etc

(iii) The ultimate question is how the word would strike

the ordinary reasonable reader. The subject matter
and context of the words may be an important
indicator of whether they are fact or opinion.

(iv) Some statements which are, by their nature and

appearance opinion, are nevertheless treated as
statements of fact where, for instance, the opinion
implies that a claimant has done something but does
not indicate what that something is, i.e. the statement
is a bare comment.

(v) Whether an allegation that someone has acted

‘dishonestly’ or ‘criminally’ is an allegation of fact or
expression of opinion will very much depend upon
context. There is no fixed rule that a statement that
someone has been dishonest must be treated as an
allegation of fact.

17. I would also note here what I said recently in Tinkler v

v Ferguson [2018] EWHC 3563 (QB) [37] about implied or
inferred expression of opinion:

‘… a number of adjectives and adverbs have

been inserted into the Claimant's meaning
which are not part of the natural and ordinary
meaning of the words. They are strained
constructions of what is being said in the
[publication]. For example, if an individual
reader thought that the Claimant's alleged
behaviour was 'selfish', that would be a personal
judgment made by the individual reader. It is
neither stated nor implied in the text. Such
inferential meanings (that depend upon - and
vary between - each individual reader's moral
judgment) are not part of the natural and
ordinary meaning of words: Brown v
Bower [54]. In context, a suggestion that the
conduct of the Claimant was 'selfish' would be
an expression of an opinion. If such an opinion
is expressly stated by the author, then it can
readily be identified as such by readers. I find
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the notion of an 'inferred opinion' conceptually

difficult. I suppose it is conceivable that an
article may not make express an author's view,
but it nevertheless emerges clearly as a result of
discernible indications in the text as to what his
or her opinion actually is on the given facts. But
this is very subjective; and it may be difficult to
separate out those cases from cases where what
is really happening is simply that the reader is
supplying his or her own judgment on the stated
facts rather than detecting the author's opinion
by implication.”

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

“When a meaning is determined, the Court will have to

consider whether the meaning is a statement of fact or
opinion. Opinion must be recognisable as an opinion, as
distinct from an imputation of fact. The opinion must
explicitly or implicitly indicate, at least in general terms,
what are the facts on which the opinion is formed, otherwise
the opinion will be treated as a statement of fact. It has been
said that the sense of opinion ‘is something which is or can
reasonably be inferred to be a deduction, inference,
conclusion, criticism, remark, observation, etc’, see
Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32
at paragraph 12 and the authorities there considered. A
statement may be fact or opinion, depending on context.”

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]:

“26. I think that some caution must be applied before overly

prescriptive rules are adopted as to the assessment of fact or
opinion. The pitfalls of doing so are perhaps demonstrated
by Singh. In my judgment, what Eady J is saying in those
passages is that context is likely to play a critical role in this
assessment. It is the fourth point from Morgan about bare
comment. There is no fixed rule that a statement that
someone has been dishonest must be treated as an allegation
of fact. The real question is whether, in context, the
allegation of dishonesty would be understood to be the
deduction or inference of the speaker. In most cases, it will
be the context in which the words appear or are spoken that
will provide the answer to whether the words are (or would
be understood to be) opinion or whether the statement is
'bare comment' and therefore potentially liable to be treated
as an allegation of fact. Asking a question of whether the
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statement is ‘verifiable’ is perhaps a dangerous gloss on this

approach.

27 Indeed, I note from Eady J's decision in Lowe v

Associated Newspapers Ltd [2007] QB 580, he said this in
relation to the test:

‘55 …readers need to be able to distinguish

facts from comment for the defendant to be
permitted to rely upon the defence of fair
comment. A bald comment, made in
circumstances where it is not possible to
understand it as an inference, it is likely to be
treated as an assertion of fact which will only
be susceptible to a defence of justification or
privilege.

56. Where facts are set out in the words

complained of, so that the reader can see that an
inference or opinion is based upon them, then
the defence of fair comment will be available;
but the defendant is not tied to the facts stated
in the article. He may invite the jury to take into
account extrinsic facts 'known to the writer' as
part of the material on which they are to decide
whether a person could honestly express the
opinion or draw the inference.
57. Whilst it is necessary for readers to
distinguish fact from comment, it is not
necessary for them to have before them all the
facts upon which the comment was based for
the purpose of deciding whether they agree with
the comment (or inference). I draw that
conclusion with all due diffidence, since Lord
Nicholls has twice expressed the opposite view,
but it does seem consistent with principle and,
in particular, with the undoubted rule that
people are free to express perverse and
shocking opinions and may nevertheless
succeed in a defence of fair comment without
having to persuade reasonable readers, or the
jurors who represent such persons, to concur
with the opinions. It is difficult to see why it
should matter whether a reader agrees; what
matters is whether he or she can distinguish fact
from comment. Sometimes that will be
possible, as it was in Kemsley v Foot , without
any facts being stated expressly, because either
they are referred to or they are sufficiently
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widely known for the readers to recognise the

comment as comment.’

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

“18. … Where hyperlinks are provided in an online article,

there is no reason to exclude that contextual material.
Indeed, depending on the context of the article, it may well
lend significant support to the submission that readers
would have understood the publication to be an expression
of opinion.”

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].

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.

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.

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:

“Emil Kirkegaard was never ‘smeared’ by s0-called SJW’s

since newspapers and other news sources, covering the
entire political-spectrum exposed him as a child-
rape/paedophilia apologist and neo-Nazi; the Socialist
Worker is far-left wing, The Guardian is left wing , The
Independent is centrist, The Telegraph is centre-right, while
the Daily Mail, right-wing. As for far-right, there is a thread
 Judgment Approved by the court for handing down. Double-click to enter the short title

on Stormfront criticising Kirkegaard’s obscene child rape

comments. It’s not a right or left issue, but right or wrong:
anyone with a moral conscience can see Kirkegaard is a
vile human and paedophile.

And no surprise, it turns out the sick freak Kirkegaard is a

fan of animated baby porn and wants it made legal:

https://rationalwiki.org/wiki/Emil_O._W._Kirkegaard#An
imated_baby_porn"

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

“Animated baby porn

Kirkegaard disturbingly supports possession of animated

(cartoon) baby pornography, that is illegal in most
countries. In 2010, he wrote a blog post defending animated
baby/child porn and criticised Sweden and Norway for
having laws against it.”

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:

“@DFH

He penned an essay defending animated baby-porn and

argues for it to be made legal in Norway and Sweden and
any other country that has banned it. So he does support
legalising it since the vast majority of countries have
banned it (Denmark being the only notable exception).

When questioned if he supports possession/legalising

of *real* child porn, what did he say?

https://rationalwiki.org/w/index.php?title=Talk:Emil_O._
W._Kirkegaard&diff=prev&oldid=1862554

‘As for possession, I’m unsure. My blogpost is

from 2012, 5 years ago, and I haven’t thought
much of the topic since.’
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What kind of an answer is that? Only something a

paedophile would write. A non-paedophile of course is
against child porn, but Kirkegaard is ambiguous/undecided
and refuses to be against it.

Furthermore, Kirkegaard uses the paedophilia-apologist

definition of paedophilia as pre-pubescent:

https://rationalwiki.org/w/index.php?title=Talk:Emil_O._
W._Kirkegaard&diff=prev&oldid=1863285

In his essay where he proposes a compromise for

paedophiles is to rape children while they sleep, Kirkegaard
wrote:

“One can have sex with some rather young ones

(say, any consenting child in puberty) without
any moral problems.”

Children in puberty are as young as 11-12; in other words

Kirkegaard literally supports adults having sex with
children, who while not pre-pubescent are still under the
age of consent.

https://rationalwiki.org/wiki/Emil_O._W._Kirkegaard#Chi
ld_rape

Why are you defending a blatant paedophile ?”

37. The hyperlinks in Post Three led to the following:

a. The first hyperlink led to a comment made by the Claimant on an internet page
(‘RationalWiki’), in which it appears the Claimant stated the following:

“I think you need more reading comprehension. The idea

with legalizing child porn possession was to avoid the
creation of blatant internet censorship, which is now is
place following the first ban on child porn possession. This
idea does not originate with me, but from
[http://falkvinge.net/2012/09/07/three-reasons-child-porn-
must-be-re-legalized-in-the-coming-decade/ Rick
Falkvinge, of the Swedish Pirate Party]. I never proposed
the compromise attributed to me, it was a hypothetical. I
have public stated that I think the evidence shows that rape
and child rape/sexual abuse (CSA) is harmful. For instance,
[http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3482426/
this study] using a MZ twin control method found that even
within twin pairs, the association of a history (self-reported)
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of CSA and mental illness is found, making it likely that the

association is causal. My remark was simply that if you
have sex with someone while they are asleep and somehow
don't wake up from it and they never discover it later
somehow, it is not likely for there to be any causal effects
on mental health. How would there be? As for 'my'
definition of pedophilia, it is totally in line with mainstream
research, as anyone can easily verify
[https://en.wikipedia.org/wiki/Pedophilia by reading
Wikipedia]. For the record, I'm not in favor of lowering the
age of consent from the current Danish value of 15, nor do
I propose legalizing the filming of child porn. As for
possession, I'm unsure. My blogpost is from 2012, 5 years
ago, and I haven't thought much of the topic since. In fact,
I have posted a total of
[http://emilkirkegaard.dk/en/?s=pedo&submit=Search 2
times on pedophilia], out of some 940 blogposts (as of
writing). --[[User:EmilOWK|EmilOWK]] ([[User
talk:EmilOWK|talk]]) 23:47, 24 August 2017 (UTC)”

b. The second hyperlink led to a comment made by the Claimant on a RationalWiki

page, in which the Claimant stated the following in response to an edit made on
the site:

“== "Interestingly, Kirkegaard narrowly defines pedophilia

as adult-prepubescent sex, which excludes teens who're still
under the age of consent." ==

There is nothing particularly interesting about this. As

[https://link.springer.com/article/10.1007%2Fs11194-007-
9049-0 Blanchard et al 2007] note:

:The term pedophilia may be defined as the erotic

orientation of persons whose sexual attraction to
prepubescent children exceeds their sexual attraction to
pubescent or physically mature persons (Freund 1981).
Similarly, the term hebephilia (Glueck 1955) refers to
persons who are most attracted to pubescent children, and
the term teleiophilia (Blanchard et al. 2000), to persons who
are most attracted to physically mature adults. Although
most authorities are careful to define pedophilia in terms of
erotic interest in prepubescent children (e.g., DSM-IV-TR;
American Psychiatric Association 2000), the distinction
between pedophilia and hebephilia is somewhat artificial.
Many child molesters—sometimes called pedohebephiles
(Freund et al. 1972)—approach both prepubescent and
pubescent children. Such patterns of offending correspond
with the realities of physical maturation. The external body
shape changes gradually and continuously from childhood
though puberty, adolescence, and maturity. Even the single
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most discrete, watershed event in either sex—menarche in

females—produces no abrupt change in the individual’s
outward appearance.

This article is not particularly unusual in its use of these

terms, as can be seen by reading
[https://en.wikipedia.org/wiki/Pedophilia Wikipedia] and
[https://scholar.google.dk/scholar?q=pedophilia+hebephili
a&btnG=&hl=en&as_sdt=0%2C31 searching for the terms
on Google Scholar]. The current text makes it seem like I
made up/cherry-picked some especially narrow definition
for nefarious purposes, while in actual fact I'm using the
most common definition. --[[User:EmilOWK|EmilOWK]]
([[User talk:EmilOWK|talk]]) 10:48, 26 August 2017
(UTC)”

c. The third hyperlink led to an article about the Claimant which stated the
following:

“Paedophilia controversies

Child rape

‘Emil Kirkegaard, who has written supportively of

paedophiles being allowed to have ‘sex with a sleeping
child’.

—Sophia Siddiqui, Institute of Race Relations

Kirkegaard has been described in mainstream and other

news sources as a child-rape apologist, defender of
paedophilia, and a paedophilehimself. This comes from a
2012 blog post in which he makes a sickening compromise
for paedophiles - to rape children while they sleep:

‘Perhaps a compromise is 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.’

In the same blog post, Kirkegaard defends paedophilia, by

writing:

‘One can have sex with some rather young ones

(say, any consenting child in puberty) without
any moral problems.’

Children in puberty are as young as 11-12; in other words

Kirkegaard literally supports adults having sex with
 Judgment Approved by the court for handing down. Double-click to enter the short title

children, who while not pre-pubescent are still under the

age of consent.

In response to newspapers (e.g. The Guardian) quoting his

post and describing him as paedophilia apologist,
Kirkegaard updated it in January 2018, claiming his post
was only a ‘thought experiment’. However, this was never
mentioned originally and looks like damage control to his
reputation.

In August 2017, when questioned about his compromise for

paedophiles to rape sleeping children, Kirkegaard defended
his original statement and said he thinks there will be no
mental harm:

‘My remark was simply that if you have sex

with someone [children] while they are asleep
and somehow don’t wake up from it and they
never discover it later somehow, it is not likely
for there to be any causal effects on mental
health. How would there be ?’

—Emil Kirkegaard, child rape apologist”

Animated baby porn

Kirkegaard disturbingly supports possession of animated

(cartoon) baby pornography, that is illegal in most
countries. In 2010, he wrote a blog post defending animated
baby/child porn and criticised Sweden and Norway for
having laws against it.”

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:

“Kirkegaard supports possession of animated child porn

and wants to legalise it for the countries he said it was
banned in, which is virtually all countries – so it’s the same
thing to describe him as a ‘fan of animated baby porn’. The
point is: only paedophiles support possession of CP [child
pornography] or cartoon baby porn. If Kirkegaard isn’t a
paedophile, why is he pro-CP? Why would a non-
paedophile want to legalise obscene cartoons of babies
being raped in diapers? Please do care to explain…. Like I
said, it’s obvious to anyone, Kirkegaard is a paedophile.
This is why all mainstream newspapers described him as
either a paedophile-apologist or paedophile. And these
 Judgment Approved by the court for handing down. Double-click to enter the short title

journalists independently read Kirkegaard’s comments and

came to the same conclusion as myself. The only people
denying this are some neo-Nazi nutjobs on this weird
website because you share Kirkegaard’s cranky/pseudo-
scientific views on race.

He never posted paedophiles should be castrated, what he

said was this:

‘the best solution to one who is exclusively

aroused by very young children: castration,
either medical or fysical. This will help reduce
libido.’

He’s added ‘very’ there when this was not mentioned

earlier, so is talking here of infants or pre-pubescent. In the
same post he says there are no moral issues for adults to
have sex with ‘rather young ones’ in puberty, so he’s
distinguishing children in puberty to pre-pubescent’s; he’s
fine for adults to have sex with children in puberty under
age of consent, but not pre-pubescent. Both though are
paedophilia. Kirkegaard though restricts the term
paedophilia to only pre-pubescent’s. This is what
paedophilia-apologists do to try to normalise having sex
with children in puberty but below age of consent.

This is all explained on the RW article.

And if you’re claiming I ‘smeared’ Kirkegaard, are you

saying every mainstream journalist/newspaper has as well
?”

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 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.

41. Post Four:

 Judgment Approved by the court for handing down. Double-click to enter the short title

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.

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.

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.

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.

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.
 Judgment Approved by the court for handing down. Double-click to enter the short title

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.

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.

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
 Judgment Approved by the court for handing down. Double-click to enter the short title

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.

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.

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.

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].

60. 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;
 Judgment Approved by the court for handing down. Double-click to enter the short title

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.

61. 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.

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.

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].

64. 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;
 Judgment Approved by the court for handing down. Double-click to enter the short title

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.

65. 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.

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

67. 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
 Judgment Approved by the court for handing down. Double-click to enter the short title

adduced by the Defendant in Post Two, as well as the general context that
underpinned the online debate.

68. 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;

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

70. 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.

71. 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.
 Judgment Approved by the court for handing down. Double-click to enter the short title

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