In earlier posts I have dealt with general concerns about the Defamation Act 2013 and concerns about section 1, “Serious harm”. In this post, I will look at at the new statutory defences of “truth” and “honest opinion” which are set out section 2 and section 3.
Subsections (2) and (3) seek to reiterate the provisions in section 5 of the Defamation Act 1952 where a relatively innocuous libel cannot be successfully sued over in the context of a much more serious one.
The historic issue and concern with section 5 was whether the matter for comparison with the indefensible libel was either (a) the entire material published or (b) simply the words selected for complaint by the claimant. This was resolved by the Court of Appeal in Polly Peck (Holdings) plc v Trelford  QB 1000, with O’Connor LJ stating (with unanimous approval):
“In my judgment section 5 plainly requires the distinct charges against the plaintiff to be founded on separate words, and these must be contained in the passages of which the plaintiff complains.”
That approach of course meant that a claimant could often largely neutralise the effect of section 5 by restricting his claim solely to the indefensible libel. In that way, a relatively innocuous libel appearing in a publication containing much more serious defamatory material could still be actionable.
This difficulty is (at least arguably) retained in the wording of section 2 of the Act. The Act would have been a good opportunity to provide that the point of comparison was not only the entire publication as published but also any connected publication. In that way, the gravity of the allegation complained of could be measured by reference to allegations contained in a series of articles published with the statement complained of.
The nature of the comment/opinion defence has been in something of a state of flux over the past 25 years or so. Indeed, it has undergone a number of changes of name and definitively lost the requirement of fairness (the comment now need be merely honest) and the nature of what may be comment has consistently been amended and expanded.
But there were plainly still new frontiers to be crossed, most particularly I think in respect of inferential statements. For some time, the courts have recognised that an inference can constitute a comment or an opinion for the purposes of this defence. In the most recent case on the defence before the Supreme Court, Spiller & Anor v Joseph & Ors  UKSC 53, the term “inference” appears no less than 39 times. However, the true nature of an inference had not yet been properly explored. It appeared to remain the law that where a conclusion was “objectively verifiable” it was not defensible as comment (although reconciling Hamilton v Clifford  EWHC 1542 (QB) and British Chiropractic Association v Singh  EWCA Civ 350 is not straight forward on this).
But an inference can plainly be (and indeed is most naturally) a factual conclusion, albeit one drawn from other facts. It would be a natural extension of the common law defence to include the situation where the defendant had set out in the publication complained of a number of accurate facts and then stated his conclusion inferred from those stated facts. The reader may share the inference or disagree with it, but if it is all set out, no serious unfairness is occasioned to the subject of the piece.
So if for example a journalist in an article were to summarise correctly a number of facts regarding an individual and then on that basis set out his or her conclusion that that individual is likely to be guilty of some offence or other wrongdoing, there would be a defence of inference. This not only allows a significant extension in freedom of expression, but also accords with the ordinary way in which people typically discuss matters of controversy. It is impossible to read the judgments of the Supreme Court in Spiller and the Court of Appeal in British Chiropractic Association without concluding that this is the territory into which the common law, left to its own devices, would have rapidly crossed.
But that is not the law under section 3. A conclusion that an individual is guilty of some offence – even if plainly inferred from other stated facts – is likely to be held to be a factual allegation not an opinion. This final and usefully reforming step in the law of comment has been effectively stymied by the enactment of section 3.
Another smaller issue with section 3 is the nature of the facts needed to sustain an opinion defence. The wording as enacted provides that there had to be facts which “existed” at the time of publication. However, there appears to be no need for these facts to have actually been known to the defendant.
Moreover, it is not clear what the effect is of other facts which may equally well exist at the time of publication, which count against the opinion. For example, if there is an accusation of parsimony against an individual, can it really be right that that comment can be sustained by a few limited acts of miserliness while other acts of tireless philanthropy are to be disregarded? The proper test each way should be the facts known to the author. If where there is continuous publication (such as on a website) and the facts known to the author change after the first publication (because for example he has been apprised of further matters), it is right that the copy be amended to reflect this (although the legal requirement to do this would be subject to the newly enacted single publication rule at section 8 of the Act).
The following amendment would, I believe, address these concerns.
Alternative proposed text
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of or any connected statement conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
3 Honest opinion and inference
(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 or a factual inference.
(3) The second condition is that in respect of a statement of opinion, the statement complained of indicated, whether in general or specific terms, the basis of the opinion and in respect of a factual inference, the statement complained of reasonably summarised the matters in the third condition from which the inference could be drawn including any such matters militating against the inference.
(4) The third condition is that an honest person could have held the opinion or drawn the inference on the basis of any relevant—
(a) any facts which existed at the time the statement complained of was published;, or
(b) anythings asserted to be a facts in a privileged statement published before the statement complained of.,
known to the author of the statement at the time the statement complained of was published.
(5) The defence is defeated if in respect of a statement of opinion, the claimant shows that the defendant did not hold the opinion and in respect if a factual inference if the defendant was malicious.
(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author in respect of a statement of opinion, did not hold the opinion and in respect if an inference that the author was malicious..
(7) For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a) a defence under section 4 (publication on matter of public interest);
(b) a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);
(d) defence under section 15 of that Act (other reports protected by qualified privilege).
(8) In this section a factual inference is a statement concerning a factual state of affairs which is expressly stated to be inferred from other matters.
(9) The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.
Dan Tench is a partner in the Litigation Department at Olswang LLP