Butt v Secretary of State for the Home Department: Revisiting the honest opinion defence

The decision in Butt v Secretary of State for the Home Department [2017] EWHC 2619 (QB) clarifies the application of the statutory defence of honest opinion under section 3 of the Defamation Act 2013. In doing so the case also confirms the application of the defence to statements made by Government bodies and the interdependence of the defence upon findings of meaning.

Facts

The Claimant Dr Salman Butt, chief editor of the website Islam 21C, was named in a September 2015 Home Office press release entitled “PM’s Extremism Taskforce: tackling extremism in universities and colleges top of the agenda”. Referring to the work of the recently established Extremism Analysis Unit, the press release identified the Claimant due to his speaking commitments at UK universities in a sub-section of the article, “Notes to editors”:

 “[8] Queen Mary College, King’s College, SOAS and Kingston University held most events. Events included the hosting of 6 speakers that are on record as expressing views contrary to British values, including Haitham Al-Haddad, Dr Uthman Lateef, Alomgir Ali, Imran Ibn Mansur (aka ‘Dawah Man’), Hamza Tzortis and Dr Salman Butt.

[9] Institutions are already required to pay regard to their existing responsibilities in relation to gender segregation, as outlined in the guidance produced in 2014 by the Equality and Human Rights Commission. The Prevent Duty Guidance makes it a legal requirement (section 29 of the Counter-Terrorism and Security Act 2015). The duty is about protecting people from the poisonous and pernicious influence of extremist ideas that are used to legitimise terrorism.”

Hearing

Senior Master Fontaine had ordered that three issues be considered at a preliminary stage:-

  1. The natural and ordinary meaning of the words complained of;
  2.  Whether the statement complained of was a statement of opinion; and
  3.  If opinion, whether the statement complained of indicated, in general, or specific terms, the basis of the opinion.

Whilst the latter two issues are the focus of this article their dependence upon the first, the determination of the meaning of the words complained of, is necessary for the application of the honest opinion defence to be considered holistically.

The hearing was heard before Mr Justice Nicol on 17 October 2017.

Meaning

The Claimant submitted that the ordinary meaning of the words complained of was that he was “an extremist hate speaker who legitimises terrorism, is likely to radicalise students and from whose poisonous and pernicious influence students should be protected.” The Defendant submitted that meaning should be narrowed to merely that “the Claimant is someone who has expressed views contrary to British values.”

Furthermore, the Defendant submitted that, should their submission be accepted by the Court, that such words did not have the propensity to cause serious harm to the Claimant. On this basis the claim would fail the serious harm test applicable under section 1(1) of the Defamation Act 2013.

In finding for the Claimant as to meaning Nicol J applied the well-established principles from Jeynes v News Magazines [2008] EWCA Civ 130, considering the meaning a hypothetical reasonable reader would take from the words complained of. In this context, the reasonable reader would conclude that the speakers identified could be considered “hate speakers” and “extremists”.

Furthermore, this meaning was exacerbated by the paragraph following it, which served to characterise the Claimant, to the reasonable reader, as an individual who spread “poisonous and pernicious” ideas from which students merited protection. Notably, Nicol J cited the long-espoused view that an overly-elaborate analysis of a statement merely obfuscates meaning, however, the context which surrounds a statement may also be considered.

Opinion or fact

Nicol J proceeded to consider the application of the first condition of the honest opinion defence under section 3 of the Defamation Act 2013:-

  1. “It is a defence to an action for defamation for the defendant to show that the following conditions are met.
  2. The first condition is that the statement complained of was a statement of opinion.”

Nicol J noted that the Act served to codify the common law defence of fair comment; previously established common law principles were still applicable to the statutory defence. Accordingly, the test to be applied was how the phrase would appear to the ordinary reader.

In finding that the words complained of were opinion Nicol J accepted the Claimant’s submissions that the labelling of an individual as a hate speaker, extremist or as someone from whom students needed protection were all matters of opinion. Indeed, the act of such labelling in and of itself relies upon the application of subjective standards. In many cases, however, distinguishing opinion from a fact is far more difficult to discern following the application of the objective test.

The basis of the opinion relied upon

Nicol J then turned to the final issue, whether the press release indicated the basis of opinion to which it referred, applying section 3(3) of the Act:-

“(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.”

In considering this issue Nicol J applied seminal precedent from Joseph v Spiller [2010] UKSC 53 – that the basis for the opinion relied upon by a statement need not be made wholly clear, merely referenced. Consequently, Nicol J found that the article clearly referenced the subject matter upon which it commented, namely, the views of the Claimant which were in the public domain. Accordingly, the statutory condition was satisfied.

Comment

The guidance given by Nicol J clarifies the position taken by the Court in the application of the statutory honest opinion defence. Endorsing Barron v Collins [2015] EWHC 1125 [13-15] Nicol J confirmed that previous common law applicable to the foundational common law defence of fair comment is applicable to the honest opinion defence.

This allows for a raft of previous common law to be applied. In the instant case, Nicol J applied the pre-Defamation Act 2013 case Telinkoff v Matusevitch [1992] 2 AC 343, to consider the context in which the statement had been made when determining if it was fact or opinion.

Nicol J acknowledged the interdependence of findings of meaning in determining whether the statement complained of was fact or opinion. Such an interdependency can also be drawn between meaning and the likelihood of serious harm as highlighted by Davis J in the recent case of Lachaux v Independent Print Ltd [2017] EWCA Civ 1334. This serves to further highlight the critical importance of preliminary findings as to meaning and the bearing these may have on subsequent issues.


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