My understanding from the ruling in David Paisley v Graham Linehan [2025] EWHC 228 (KB) is that the case does not relate directly to Graham's opinions, nor to any article that Graham wrote, but rather to three defamatory comments posted by someone else ("Ferguson") in reply to the transcript of a speech (by Ceri Black) that Graham published on his Substack:
"The Claimant now complains of only 3 comments"
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/228#para_8
The comments were only visible for a matter of minutes before being deleted and Judge Eardley remarks:
"it is for the Claimant to prove whether the comments were actually published to anyone during any of the relevant timeframes."
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/228#para_19
"If the party cannot establish that the material would have been seen by all readers who read the statement during the specified timeframe, it must be ignored."
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/228#para_27
I think that the latter two parts of the ruling mean that the onus is now on Paisley to prove that anyone, apart from him, actually read the defamatory comments before they were deleted - but I am happy to be corrected.
It seems that the reason that Graham, rather than the person who commented, has been taken to court is that Graham has been identified as the "publisher", ie. in that the comments were posted on his Substack. Again, I am happy to be corrected as IANAL and I am just making the best sense that I can of the ruling.
However . . . hypothetically . . . I rather suspect that if defamatory comments had actually been posted by Graham, but on someone else's Substack, that Paisley would have elected to take Graham to court, ie. rather than the publisher of the hypothetical other Substack.
It will be interesting to see what happens at the next stage.
The first sentence of the judgement starts,
"This is my second judgment on certain preliminary issues in this case"
The first judgement was on 1 Aug 2024:
https://www.bailii.org/ew/cases/EWHC/KB/2024/1976.pdf
Now that the "preliminary issues" have been dealt with, my understanding is that the case will next go to trial to determine whether the comments caused Paisley "serious harm". Again, I am happy to be corrected.
Defamation, Libel & Slander in the UK
Serious harm
For a statement to be defamatory, it must be seen to have caused, or be likely to cause serious harm to the reputation of the individual it refers to.
This requirement of ‘serious harm’ was introduced in the Defamation Act 2013, and later court rulings have clarified the degree that meets this standard.
The decision on whether the element of serious harm is present in each individual case will be down to the court to decide but situations where it may be difficult to prove serious harm include, but are not limited to:
- where the individual affected already has a ‘bad’ reputation
- where the reach of the defamatory statement was very limited
- where the statement criticises services or goods
- where the statement was withdrawn, corrected or an apology was made
In the case of a defamatory statement affecting an organisation, serious harm can only be proved if the statement has caused, or is likely to cause, the organisation serious financial loss.
Publication
The defamatory statement must be expressed or conveyed to another person or persons.
www.lawble.co.uk/defamation/#elementor-toc__heading-anchor-5
There are usually a few lawyers hanging around FWR so hopefully one will pop by at some point and confirm, correct or clarify what is going on with this case.