A High Court judge has “substantially endorsed” Guardian News and Media‘s argument in the first stage of its libel fight with a former schools chief at the centre of a scandal explored in the Serial podcast The Trojan Horse Affair.
The ruling found that the Observer comment article in question carried a defamatory meaning – as GNM had conceded at a court hearing earlier this month. But the judge primarily agreed with the meaning as put forward by the publisher.
GNM promised to “continue to defend our journalism robustly” as a result, as the case heads to trial.
The news publisher is being sued by Tahir Alam, the former chairman of an academy trust running three schools in Birmingham who was caught up in allegations set out in a 2014 letter of a plot to take over the curriculum by Islamic extremists. The letter is now widely considered to be a hoax, but Alam was banned from holding any school management role after the Department of Education decided he had engaged in conduct aimed at undermining fundamental British values.
The story, its impacts and the reasons behind it became the subject of a February 2022 New York Times podcast series made with the company behind the hit 2014 podcast Serial.
An Observer article by columnist and chief leader writer Sonia Sodha, published on 20 February 2022, criticised the series, describing it as “a one-sided account” that “breaches the standards the public have the right to expect of journalists”.
But Sodha also criticised Alam, who she described as the podcast’s “hero” in the piece, which was headlined: “The Trojan Horse Affair: how Serial podcast got it so wrong.”
Alam argued that the passages of the article about him would mean to an ordinary reasonable reader that he had “abused his powerful position to maliciously utilise accusations of racism/Islamophobia in order to obstruct exposure of child sexual abuse in his school community, applying the tactic used to obstruct exposure of child sexual abuse by Asian Muslim grooming gangs in Rotherham and within the priesthood in the Catholic Church.
“He further instigated and/or promoted misogynist and homophobic mistreatment of school pupils.”
But the judge backed GNM’s argument that a reader would believe he had “allowed an ultra-conservative Islamic viewpoint to influence the provision of education to students and enabled a culture in which the schools for which he held responsibility suffered from poor governance, including child protection and safeguarding concerns; employed people in leadership positions despite the fact they espoused or had failed to challenge extremist views; had cultures in which homophobia and misogyny, including from teachers, were allowed to flourish and young people were encouraged to become intolerant of diversity”.
The difference, the judge noted, was that Alam had argued the article claimed he had carried out actions maliciously whereas GNM suggested it was about “allowing and enabling, rather than instigating or promoting”.
The judge added: “…I think it is clear that the meaning I have found is defamatory of the claimant.” GNM had agreed that even its own suggested meaning would be defamatory at common law.
A GNM spokesperson said: “We welcome this judgment on meaning. The claimant had advanced an utterly unrealistic meaning for the article and this judgment is a wholesale rejection of that.
“The Court has substantially endorsed what GNM has always said the article means. GNM will continue to defend our journalism robustly.”
Observer Trojan Horse comment piece presented as statements of fact
However GNM fell down in its argument that some of the statements in issue were of opinion, rather than fact. Although the article was in the opinion section of the newspaper, and its “thrust” was of comment rather than news reporting, “that does not mean that facts are not stated as the basis of the opinion,” Mr Justice Griffiths said.
GNM argued that phrases like “poor governance”, “extremist” views, “homophobia” and “misogyny” were “evaluative” and therefore not statements of fact. But the judge said: “The context is, however, against them being used in a subjective or evaluative way, leaving room for the reader (or other reasonable people) to conclude that governance was not poor, views were not extremist, or that homophobia and misogyny were labels applied to a situation which other reasonable people might view differently, or even that it might be a matter of opinion whether any of these things were so.”
“On the contrary,” he said, “the whole thrust of the article is that the lack of governance has allowed every bad thing identified in the article to take place, and nothing is said about the detail of governance, or about what might be said in its defence, to allow the reader to conclude that the description of governance as ‘poor’ was only a matter of opinion. Poor governance is presented as a fact.”
The judge said context determines whether words like “homophobia” and “misogyny” are facts or opinion – likening them to the word “racist”. The article gives as examples of homophobia a teacher referring to gay people as “animals” and “satanic” of which the judge said: “No-one would read that as anything but unambiguously homophobic; that description cannot be characterised as a matter of opinion only.”
Similarly, he added: “The example of the sex education lesson teaching that a woman cannot refuse her husband sex is sexist in the same objective way; and since it denies women the right to give or withhold consent it dehumanises women in a way that links to the earlier epithet of misogyny, of which it is presented an example, in the very next sentence. In context, both words are presented, with their examples, as statements of fact, not expressions of opinion.”
A separate ruling on meaning published earlier this month paved the way for a libel trial between GNM and actor Noel Clarke over its reporting of sexual misconduct allegations against him.
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