When can a libel be defended as honest opinion?

The recent judgment in Dyson v MGN Limited [2023] EWHC 3092, in which the Defendant publisher succeeded in its defence of honest opinion, provides important authority on the interpretation of section 3(4)(a) of the Defamation Act 2013. This decision, as well as the Court of Appeal’s decision in Riley v Murray [2022] EWCA Civ 1146, provides an opportune moment to review the recent case law on section 3 and to assess how the courts have interpreted the three conditions at the core of the honest opinion defence.

The defence of honest opinion (broadly analogous with the pre-2013 common law defence of fair comment) is conceptually difficult.  Whether the defence is made out can sometimes be difficult for lawyers to determine, never mind the lay client.

The three conditions of an honest opinion defence

The Act provides:

(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.

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

(4)The third condition is that an honest person could have held the opinion on the basis of—

(a)any fact which existed at the time the statement complained of was published;

(b)anything asserted to be a fact in a privileged statement published before the statement complained of.

(5)The defence is defeated if the claimant shows that the defendant did not hold the opinion.

…

(8)The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.

The First Condition

The first condition of the defence is that the statement complained of is a statement of opinion.  As with meaning, the Court makes this assessment this from the perspective of the ordinary reasonable reader and must ask itself “would the words strike the ordinary reader as a statement of fact or opinion?”  Although one might be forgiven for assuming that this exercise is necessarily impressionistic (the ordinary reasonable reader is not generally in the habit of parsing the text that she reads), the boundary between fact and opinion is not always as apparent as it might seem. To aid it enquiries at this stage, the Court has formulated a series of now well-established principles to assist it in distinguishing between the two, summarised in the case of Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB):-

“i) The statement must be recognisable as comment, as distinct from an imputation of fact.

ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.

iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.

iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.

v) Whether an allegation that someone has acted "dishonestly" or "criminally" is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.”

These principles are largely uncontroversial, and much will depend on the context of the words.  In Corbyn v Millett [2021] EWCA Civ 657, the Court of Appeal provided useful commentary on the issue of ‘bare comment’. Defined at (iv) above, bare comment is more easily understood by way of example.  The statement “Mr Smith is a disgrace”, although evaluative, fails to identify what the remark is about. In these circumstances, the Court may decide that such a statement is a form of ‘bare comment’ and ought to be treated as a statement of fact for the purposes of the section 3 defence. In these circumstances, the statement would likely only be defensible by truth.

In Corbyn, the Court of Appeal clarified two things in relation to ‘bare comment’.  First, Warby LJ confirmed that the question of ‘bare comment’ “comes into play at the first step of the analysis, when deciding whether a statement is one of fact or opinion” [23], not as the Claimant had argued, as part of the second condition (that the statement indicates the basis of the opinion). Furthermore, the Court of Appeal made clear that the caselaw on bare comment does not prescribe an inflexible rule compelling a court to treat a statement of opinion as if it were fact where the opinion implies that a claimant has done something but does not indicate what that something is [24]. The fact that a statement seems to consist of ‘bare comment’ is indicative, but not determinative, of how the Court should classify it.  The Court’s analysis of the first condition will always be subject to the overriding test: would the ordinary reasonable reader understand the statement as fact or opinion?

The Second Condition (section 3(3))

The second condition requires the defendant to indicate, whether in general or specific terms, the basis of the opinion.  As the Explanatory Notes to the 2013 Act make clear, this condition is intended to reflect the test approved by the Supreme Court in Joseph v Spiller [2010] UKSC 53 that “the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” and “is intended to retain the broad principles of the current common law defence as to the necessary basis for the opinion expressed…”. (Explanatory Notes, paragraph 22).

To understand how the second condition operates, it is worth revisiting the development of the common law test.  In defining that test, the Supreme Court in Joseph relied heavily on the decision of the House of Lords of Kemsley v Foot [1952] A.C. 345.  The publication in issue in Kemsley was an article written by the future leader of the Labour Party leader Michael Foot, attacking an article in the Evening Standard, a newspaper owned by Lord Beaverbrook. The title of Foot’s article was, “Lower than Kemsley”. Kemsley, the Claimant, was a well-known newspaper proprietor.  The article set out no facts at all that related to Kemsley or his newspapers.  Kemsley sued for libel, and the Defendants pleaded a defence of fair comment.

The question before the House of Lords was “whether a plea of fair comment is permissible where the facts or, at any rate, the salient facts upon which the comment is made are not set out in the publication complained of.”  Reviewing the words complained of, the House of Lords considered whether, although no facts were expressly referred to, there was a “sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action.” Lord Porter, giving the main judgment, held that there was: it was “at least arguable that the words directly complained of imply as fact that Lord Kemsley is in control of a number of newspapers and that the conduct of those newspapers is in question.”  Building on Kemsley in Joseph, the Supreme Court confirmed that the facts that are said to underpin the opinion do not need to be sufficiently identified to “enable the reader to judge for himself whether it was well founded.” It is sufficient for the comment to identify “what the comment is about” [104]. Nothing in the post-2013 Act case law suggests that the section 3(3) requirement is any less permissive (see, for example, the first instance decision in Butt v Secretary of State [2017] EWHC 2619 (QB), and particularly Mr Justice Nicol’s comments at [39].  The decision was upheld by the Court of Appeal).

The Court of Appeal’s decision in Riley provides some recent and important clarity on a separate, but related aspect of the second condition, namely, whether at the stage of investigating the second condition, it is necessary for the Court to consider whether the basis indicated is true.  Warby LJ, upholding this aspect of Nicklin J’s first instance judgment, answered emphatically that it is not: “the only question raised by section 3(3) of the 2013 Act is whether the statement complained of indicated the basis of the opinion which it contained [44].” At this stage, there is no investigation of the truth, or otherwise, of the basis indicated.  This seems a pragmatic solution for ensuring the separation of the enquiries required at the second and third conditions. However, one might pause to reflect on the logical consistency of this proposition; as the editors of Gatley note at paragraph 13-013, a fact is by definition true (a ‘true fact’ being tautologous), and there cannot, therefore, be a factual basis for an opinion where the ‘fact’ indicated as the basis is false.

The Third Condition (section 3(4))

The third condition consists of two limbs and will be met if the defendant satisfies either.  The first is that an honest person could have held the opinion on the basis of “any fact which existed at the time the statement complained of was published” (section 3(4)(a)). The second is that an honest person could have held the opinion on the basis of “anything asserted to be a fact in a privileged statement published before the statement complained of” (section 3(4)(b)). The following analysis reflects the focus of the caselaw and therefore centres on section 3(4)(a).

Read literally, section 3(4)(a) creates an extremely broad test; there is no express link in the statutory wording between it and the basis condition and, therefore, as the Court of Appeal suggested in Riley, “on the face of it…there need be no connection between the facts indicated in the statement complained of and the fact(s) that can support the opinion.”  In other words, were the Courts to adopt a literal reading of the provision, the defence could succeed even if the facts indicated were false, if there was some other fact at the time the statement complained of was published that might support the allegation.  This could lead to a scenario, set out in Blackstone’s Guide and quoted in both the first instance and Court of Appeal judgments in Riley where a person is accused of dishonesty “on the basis of some recent alleged, but entirely false, conduct in his or her public capacity, and the comment could be defended as one which could be held by an honest…person, on the basis of some conduct in a wholly different and private capacity, years previously..”

The Court of Appeal, rejecting a literal interpretation of the statute, made clear that it was unlikely that Parliament “intended to break the link, firmly established in the common law, between the facts indicated in the statement and the fact(s) that could support the opinion” [57]. Instead, where the opinion that had to be defended was expressly tethered to a specific fact, as it was in that case, the defence would fail if that fact were untrue [59].

The Court of Appeal did not directly address the question as to whether, in circumstances where the defendant provides several facts in the statement complained of that are said to form the basis of the opinion in question, some of which are true and some of which are not, the defence of honest opinion could succeed. There are competing possibilities as to how the Court will approach this point, should it arise in a future case.  A literal reading of the statute here suggests that, so long as any fact stated as the basis of the opinion was true, then a Defendant could rely on the defence, however distorting the other false information might be.  Paragraph 28 of the Explanatory Notes to the 2013 Act supports this interpretation, noting that subsection (8) of the Defamation Act 2013 abolishes section 6 of the Defamation Act 1952, which (in rather convoluted terms) allowed for the possibility that an action for libel will not fail “by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved”.  As Warby LJ suggests in an obiter remark in Riley v Murray, “the much simpler wording of section 3(4)(a) means that if a fact exists that could support the opinion that will be enough, and it will not matter how many false assertions were made.” Given, however, that section 3 was intended to carry over much of the common law, and that the Court of Appeal in Riley v Murray was prepared to adopt a purposive reading of section 3(4)(a) to give sensible effect to this provision in the context of a single fact comment, it might be conjectured that the courts will do the same in these circumstances and that its approach would be to weigh up the relative significance of the true and false information provided as the basis of the opinion.

Regardless, one arguably perverse consequence of the common law position, and which the 2013 Act does not remedy, is that a defendant is in a better position as regards section 3(4)(a) where the Defendant meets the basis condition without referring to any facts at all (as in Kemsley) than when the statement complained of contains the facts said to support the opinion in question.  In the case of the former, a defendant would only need to establish a fact in existence at the time of publication that supports her position.  The defendant in the second scenario is given no credit for setting out the factual basis of her opinion. On the contrary, she assumes more risk in doing so.

In Dyson, the High Court also dealt with the interpretation of section 3(4)(a). Like Riley, Dyson was a single fact case.  The statement complained of asserted a single fact - that Dyson had moved its global head office from the United Kingdom to Singapore -  to claim that James Dyson was a hypocrite who had “screwed the country” and set a poor moral example to young people. At a preliminary issue trial, Nicklin J determined that the first and second conditions of the honest opinion defence were met. The outstanding issue for trial, in respect of the honest opinion defence, was whether the Defendant had met the requirements of section 3(4)(a).  Unlike in Riley, the central battleground was not so much whether the fact stated in the article was true, as whether the Defendant was entitled to rely on extraneous facts not mentioned in the article in support of its defence, and the extent to which the Defendant was required to contextualise the facts relied on in support of the opinion in the article.

Mr Justice Jay divided this into four sub-issues:  

• Whether the Defendant is entitled to raise, and prove, facts which were not indicated in the article;
• Whether whatever fact or facts the Defendant may rely on for these purposes is or are substantially true;
• Whether the Defendant was required to place the facts in their full and proper context; and if so, had failed to do so; and
• Whether, in the light of the foregoing, an honest person could have held the opinion expressed in the article.

On the first sub-issue, the Court held that, on the assumption that the asserted fact is true, there is no basis for confining the Defendant to that single fact [106].  The Defendant publisher was, therefore, entitled to rely on extraneous facts that were not mentioned in the article at the centre of the dispute, but that were pleaded in the Re-Re-Amended Defence.

As to the second issue, Jay J found that the facts relied on in the Re-Re-Amended Defence were substantially true. The third sub-issue centred on the extent to which the Defendant publisher is obliged to set out facts in their full and proper context.  The Claimant argued that the single fact stated by the Defendant in the article was apt to mislead and that the author had airbrushed “out of the picture vitally important points which fundamentally undermine” the factual proposition it had presented to the reader.  The judge concluded that the “scope for any requirement to include so called contextual facts is extremely limited.” If the facts provided “were true, and… he has not acted maliciously in making his selection (which is not alleged in the present case), an obligation to set out additional facts only arises if those facts remove “the underlying factual substratum” of the comment” [126].  Only the omission of a fact that would falsify or entirely undermine the basic factual allegation (in this case, that Dyson moved its global headquarters out of the United Kingdom) would undermine a Defendant’s reliance on the section 3 defence.

Jay J's reasoning here reflects the fact that, when considering the fourth of the sub-issues, the Court does not expect the “honest” commentator to additionally be “fair-minded, intellectually honest and balanced” [129]. Indeed, the judge, citing the common law test in Telnikoff v Matusevitch [1992] 2 AC 342, confirmed that a commentator could be honest “however prejudiced or obstinate” [136].  The position under section 3 of the Act, it seems, echoes the wide margin afforded to the honest commentator under the common law.

Conclusion

Section 3 was broadly intended to reflect the common law position, while simplifying and clarifying certain elements and removing the requirement for the opinion to be on a matter of public interest (Explanatory Notes, paragraph 19). Ten years on, relatively few cases have tested the defence at trial.  Those that have suggest that that section 3 is a potent weapon in a defendant’s arsenal and a powerful safeguard of the right to freely express opinion.  Nevertheless, despite Parliament’s intention to “simplify and clarify” the defence of fair comment, a combination of poor drafting and a paucity of caselaw has left aspects of the third condition of the honest opinion defence unclear.  While Riley and Dyson go some way towards doing so, uncertainty remains and section 3(4)(b) remains largely untested.

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