Readers of a certain age will be very familiar with of Bob Dylan’s music.  But how many will know that  his 1964 protest classic “the times they are a-changin’” was actually an analysis of English libel law relating to meaning?  And that it was praising the ability of the Common Law to mirror new social thinking?  Me neither – so let me explain!

There are a number of cases from the 20^th century, in which the Courts found that the natural and ordinary meaning of referring to someone as homosexual was defamatory at common law.

But as Bob said, the times they are a-changin’, and a recent High Court decision has provided us with an up-to-date ruling which demonstrates just how flexible the Common Law can be.

The case in question was brought by an Afghan national called Mr Ahmadi, against Guardian News & Media, in relation to an article published on its website on 18^th October 2022.  The article concerned the abduction, torture, and murder of a gay medical student in Kabul named Hamed Sabouri, but the article incorrectly contained a photo of Mr Ahmadi.  The incorrect photo was published for less than 12 hours, before it was replaced.

Mr Ahmadi argued that as a heterosexual man living in Afghanistan, whose “life and identity are deeply rooted in Afghan society” – a society which punishes homosexuality with death or severe punishment – the suggestion that he was gay had “endangered his life, shattered his reputation and caused him irreversible harm”.  Mr Ahmadi stated that he had been forced to go into hiding since the publication of the incorrect photograph for fear of reprisal from the Taliban.

The publisher applied to have the claim struck-out on the basis that the claimed meanings were not defamatory of the claimant.

To be defamatory at common law, a publication must tend “to have a substantially adverse effect of the way that right-thinking members of society generally would treat the Claimant”.

In this case, the court emphasised that the words “society generally” are important, because having an adverse effect within a section of society was not enough to fulfil the definition. To be defamatory, the words must attribute behaviour to the Claimant which are contrary to the “common, shared values of society”.

The Guardian argued that if the article was taken to refer to Mr Ahmadi as a gay man (even though he was not named, was not a medical student, and was not dead), the reference was not one which suggested any impropriety on his part, and that simply being gay was not “contrary to common, shared values in our society”.

In contrast, the Claimant argued that it was the Afghan/Iranian/Muslim community in the UK which should be considered as the relevant community, and within that community, the Afghanistan Penal Code 2018 (which criminalises homosexuality) reflects the views of a significant proportion of people.

The Claimant’s submissions were not accepted and the court ruled that it is necessary to consider the views of right-thinking members of society generally, rather than just a particular section of it.

Johnson J. noted the seismic changes in the legal framework of England & Wales in recent years: the de-criminalisation of homosexuality in 1967; the protection from discrimination on the basis of sexuality; the ability of same-sex couples to adopt children; and the legalisation of same-sex civil partnerships and marriages, being just a handful of the examples he noted.

The judge also pointed out that there is now substantial case law in England & Wales which shows that same-sex couples are “entitled to the same respect and dignity as opposite-sex couples”.

Accordingly, he found that it cannot be defamatory of someone to say that he is gay.

To reinforce the point, Johnson J. noted that as it is now considered defamatory to refer to someone as homophobic, it follows that it cannot be defamatory to refer to someone as homosexual.

Whilst homophobic attitudes remain in sections of society in England & Wales, he said, they are not the views of the right-thinking members of society generally.  Therefore the Claimant’s claim could not succeed.

It’s worth noting, however, that whilst the court has ruled this way in this particular case, where allegations of hypocrisy or infidelity accompany a statement that someone is gay – for example, if they are married and publicly hold themselves out as being heterosexual – there is, of course, still room for a different conclusion to be reached.

This judgment is a prime example of the common law adapting to match changing societal attitudes, and why it has stood the test of time.

We will never know if the judge actually had in mind Bob Dylan’s perceptive analysis of the flexibility of the Common Law and its effect on this particular aspect of libel law.  But unfortunately for Mr. Ahmadi, this judgment shows that our society generally has changed, that the genuine and honestly held views of a section of society may not be sufficient to constitute the views of society as a whole, and that the Common Law will always adapt to keep up with modern thinking.