Book by Andy Ngo who is suing Guardian News and Media. Picture: Shutterstock/Dylanhatfield.com
Guardian News and Media has been granted permission to appeal a pre-trial libel judgment that found it was defamatory to call an influencer an “‘alt-right agitator”.
The Court of Appeal found it was “properly arguable” that attributing “far-right” beliefs to Andy Ngo “would not have a substantial adverse effect” on the way he would be treated by “right-thinking people.
Ngo, an American influencer who lives in London, is suing GNM over a phrase in a brief music review published in The Observer and on The Guardian website in March last year, shortly before Tortoise Media took ownership of the Sunday title.
The review of the Mumford and Sons album Rushmere said: “In the wake of the 2021 exit of banjo player (and son and co-founder of GB News) Winston Marshall, Mumford and Sons have reverted to a trio for their fifth album.
“Marshall’s departure followed an outcry after he praised ‘alt-right’ agitator Andy Ngo. Yet listening to Rushmere, one wonders whether the world might be a better place had every member of the band felt obliged to quit three years earlier, when news broke that they had hosted Jordan Peterson at their studio.”
Ngo sued GNM over the phrase “‘alt-right’ agitator”, arguing it suggested he had racist or far-right beliefs which went beyond simply being an “armchair observer”.
A High Court judge found that the phrase was “plainly defamatory at common law” as the natural and ordinary meaning was that Ngo “actively promotes far right beliefs”.
GNM has now been given permission to appeal three out of five grounds it filed in relation to the judgment. A hearing will be held at a later date.
One of the grounds of appeal is whether Deputy High Court Judge Guy Vassall-Adams KC erred in determining that the words complained of were fact and not opinion.
This would influence whether GNM is able to use the honest opinion defence at trial.
The Court of Appeal said this was “arguable with a realistic prospect of being upheld”.
However the order added: “Success on that point would be something of a hollow victory unless the applicant succeeded also in establishing” the second two elements allowed in the appeal.
Secondly GNM is allowed to ask the Court of Appeal to consider whether Vassall-Adams “erred, and engaged in a serious procedural irregularity, in determining that even if the words complained of were opinion, they did not set out the basis for the opinion in general or specific terms”.
And thirdly GNM can appeal over whether the judge erred in determining that the statement was defamatory at common law.
Lord Justice Warby, the judge granting the appeal, said: “I think it is properly arguable that he erred on this point and that the attribution to the claimant of beliefs that are ‘far-right’, or even ‘active promotion’ of such beliefs, would not have a substantial adverse effect on the way the claimant would be treated by ‘right-thinking people’.”
He said it was “therefore plausible” that this element of the appeal “might succeed in relation to the claim based on the natural and ordinary meaning”.
A GNM spokesperson said: “We continue to believe the judgment has several shortcomings and look forward to the hearing of this appeal.”
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