Case Summary and Outcome

The England and Wales High Court (King’s Bench Division) dismissed an Afghan national’s claim that The Guardian defamed him by publishing his photograph in an article about the murder of a gay man by the Taliban. The article reported on the killing of Hamed Sabouri, a gay medical student, and included a photograph of Safiullah Ahmadi, who was unrelated to the story. Ahmadi argued that the image implied he was homosexual, damaging his reputation in the Afghan, Iranian, and Muslim communities residing in England and Wales. While considering judicial precedents and the legislative framework in England and Wales, the Court concluded that the societal values had evolved since the 1960s and that no “right-thinking members of society would generally think less of someone because of their sexual orientation or because they are in a same sex relationship.” Therefore, to the Court, The Guardian did not defame Ahmadi.

Facts

On October 18, 2022, the British newspaper The Guardian published an article titled “Gay Afghan student ‘murdered by Taliban’ as anti-LGBTQ+ violence rises,” accompanied by the sub-heading: “The death of Hamed Sabouri is the latest in a wave of attacks, with rights groups warning thousands are going into hiding or attempting to flee the country.” [p. 7] The article reported that the Taliban had abducted, tortured, and murdered Hamed Sabouri, a gay medical student in Kabul. It featured a photograph of Safiullah Ahmadi, an Afghan national unconnected to Sabouri, with the caption: “Hamed Sabouri’s family and partner says he was detained at a checkpoint in Kabul in August and tortured for three days before being shot. Photograph: Handout.” [p. 8]

Later the same day, after becoming aware that the image was not of Sabouri, The Guardian removed Ahmadi’s photograph from the article and inserted a brief note stating: “The main image on this article was replaced on 18 October 2022,” without any further explanation. [p. 10]

On August 8, 2023, Ahmadi sent a pre-action letter to The Guardian seeking a public clarification, an apology, and £250,000 in damages for defamation. The Guardian claimed it did not receive this initial letter but acknowledged receipt of a follow-up letter on September 21, 2023, to which it responded in detail. The Guardian received no further correspondence until January 24, 2024, when Ahmadi’s representatives provided particulars of the claim that had been filed. There were discussions between Ahmadi and The Guardian regarding procedural issues, after which proceedings were transferred to the High Court.

Decision Overview

Justice Johnson of the England and Wales High Court (King’s Bench Division) presided over the case. The main issue for determination was whether The Guardian defamed Safiullah Ahmadi by publishing an article discussing the murder of a gay Afghan student while using Ahmadi’s photograph, thereby implying that he was homosexual.

Ahmadi argued that the article falsely implied he was a homosexual man, whereas he is a heterosexual whose life and identity are deeply rooted in Afghan society, where homosexuality is criminalized and can be punished by death. He contended that the article defamed him by portraying him as a gay man who had gone into hiding due to fear of the Taliban. He further submitted that even if a reader realized he was not the individual described in the article, they would nonetheless infer that he was a member of the LGBTQ+ community. He maintained that the standard for determining whether a statement is defamatory should consider the views of the Afghan, Iranian, and Muslim communities residing in England and Wales.

The Guardian maintained that the article clearly referred to Hamed Sabouri, not Ahmadi. It argued that any reader who recognized Ahmadi in the photograph would assume that its inclusion was a mistake, or that Sabouri had a strong resemblance to Ahmadi. The newspaper contended that being gay or in a same-sex relationship is not “contrary to common, shared values in our society.” [p. 28] The Guardian held that current legislation recognizing and protecting the rights of same-sex couples reflected prevailing societal values and demonstrated that such an imputation cannot be considered defamatory under English law.

The Court considered whether the article had adversely affected “the way that right-thinking members of society” viewed Ahmadi, in order to determine whether it constituted defamation under common law [p. 17]. It assessed whether the publication conveyed to the readers that Ahmadi had engaged in behavior, or held views, contrary to the “common, shared values of society, or that are illegal or, by the standards of society as a whole, immoral.” [p. 19]

The Court referred to Monroe v Hopkins [2018] EWHC 433 (QB), which departed from earlier judicial precedents and observed that “….a statement is not defamatory if it would only tend to have an adverse effect on the attitudes to the claimant of a certain section of society.” [p. 17] Thus, the Court rejected Ahmadi’s submission that it was appropriate to focus on the views of specific communities, such as the Afghan, Iranian, or Muslim communities, or to refer to the Afghanistan Penal Code 2018.

Subsequently, the Court cited Kerr v Kennedy [1942] 1 KB 409 and Liberace v Daily Mirror Newspapers Ltd, The Times. In these cases, describing individuals as homosexual was held to be defamatory. However, the Court noted that societal views had evolved significantly since then—for instance, in Prophit v BBC [1997] SLT 745, the term “lesbian” was not considered defamatory. The Court referenced other case law here, such as Quilty v Windsor (1999) SLT 346 and Brown v Bower [2017] EWHC 2637 (QB), where the courts held that referring to others as homosexual is generally not considered defamatory.

While considering the shift in societal values, the Court also reviewed the domestic legal framework in England and Wales, including the decriminalization of homosexuality under the Sexual Offences Act 1967, anti-discrimination protections based on sexual orientation under the European Convention on Human Rights and the Equality Act 2010, and the legal recognition of same-sex couples’ rights to adopt and marry. It noted that courts have affirmed that same-sex couples are entitled to the same respect and dignity as heterosexual couples.

Furthermore, the Court observed too that it is defamatory to call a person homophobic, as in Alam v Guardian News and Media Limited [2023] EWHC 2847 (KB). It stated that the law would risk incoherence if both homosexuality and homophobia could be considered defamatory imputations.

The Court also quoted Gatley on Libel and Slander (13th edition, 2024), which states: “In the past, it has been found to be defamatory to say that a person was a homosexual, though this view is highly unlikely to prevail today… It seems highly unlikely that a judge would find that… a man was a practising homosexual, to be defamatory.” [p. 39]

The Court then referred to Australian decisions, such as Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432, where the judge held that no ordinary reasonable member of the community would think less of someone for being homosexual. Similarly, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 Aust LR 77, the High Court of Australia observed that allegations of consensual private homosexual conduct were generally not defamatory, though the decision could vary depending on “time, personality, and circumstance.” [p. 34] The Court also referred to the U.S. case law—including Albright v Morton, 321 F Supp 2d 130 (D Mass 2004), where it was noted that, just as it was once defamatory to describe a white person as Black, but no longer is, the same shift has occurred with respect to sexual orientation.

Considering the societal changes since the 1960s, the Court concluded that no “right-thinking members of society would generally think less of someone because of their sexual orientation or because they are in a same sex relationship.” [p. 39]

The Court emphasized the importance of determining “the single natural and ordinary meaning of the publication, which is the meaning that the hypothetical reasonable reader would understand the publication to bear.” [p. 20] On this point, the Court found that, aside from the photograph, nothing in the article could reasonably be understood to refer to Ahmadi, as it clearly described a different individual with a different name, background, and circumstances. According to the Court, a reasonable reader acquainted with Ahmadi would not conclude that the article was about him or implied he was gay. The Court emphasized that even the photograph, in context, would either be seen as a mistake or a coincidence of resemblance. The Court rejected Ahmadi’s argument that reasonable readers might interpret the photograph as depicting a member of the LGBTQ+ community other than Sabouri.

The Court opined that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm” to the claimant’s reputation, as required by section 1 of the Defamation Act 2013. [p. 21] Given that the publication was not defamatory at common law, and Ahmadi failed to provide evidence of actual reputational harm in England and Wales, the Court rejected Ahmadi’s claim and granted summary judgment in favor of The Guardian.