In the case of Butt v Secretary of State for the Home Department [2017] EWHC 2619 (QB) Nicol J held that a Government Press Release which meant that the claimant, Dr Salman Butt, was an extremist hate speaker constituted a statement of opinion, not of fact.
Background
Dr Salman Butt is Chief Editor of a website aimed at “articulating Islam in the 21st Century”. He has been an invited speaker at various universities’ Islamic societies. He holds conservative religious views but, he affirms, not extremist views.
In 2011, the Government launched its Prevent strategy, seeking to reduce the threat of domestic terrorism by inhibiting people from becoming or supporting terrorists. Section 26 of the Counter-Terrorism and Security Act 2015 imposes a duty on certain bodies to have due regard “to the need to prevent people from being drawn into terrorism”. The Secretary of State may produce guidance on Prevent and specified bodies (including higher education institutions) are obliged to have regard to such guidance. The Press Release, issued by David Cameron, the Prime Minister’s Office, the Home Office, BIS, and Jo Johnson MP (Minister for Universities), reported an update to Prevent guidance.
The updated guidance introduced a new duty on universities to ensure that they have (among other things) proper risk assessment processes for speakers so that “those espousing extremist views do not go unchallenged”. The Press Release asserted that in 2014, there had been at least 70 campus events involving speakers “known to have promoted rhetoric that aimed to undermine core British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs”. Events included the hosting of speakers who were “on record as expressing views contrary to British values, including… Dr Salman Butt”. The Press Release underlined the aim to protect people from the “poisonous and pernicious influence of extremist ideas that are used to legitimise terrorism”.
Dr Butt brought proceedings challenging the lawfulness of the revised Prevent guidance as well as private law claims including a claim for libel. In respect of the libel claim, Dr Butt argued that the natural and ordinary meaning of the words in the Press Release were that he is “an extremist hate speaker who legitimises terrorism, is likely to radicalise students and from whose poisonous and pernicious influence students should be protected”. He contended that these were factual imputations. The Secretary of State, on the other hand, contended that the natural and ordinary meaning of the words went no further than imputing that Dr Butt “is someone who has expressed views contrary to British values”, that this was a statement of opinion and that the basis of the opinion had been indicated in the Press Release.
Judgment
The Judge had to decide what the words complained of meant, whether they constituted a statement of fact or opinion and, if the latter, whether the basis of the opinion had been indicated.
In determining meaning, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 [14] articulates several well-settled principles to be applied. The meaning must be that which the ordinary reasonable reader, not avid for scandal, would take from the words. Over-elaborate analysis is to be avoided and the publication must be read as a whole. To these principles, it should be added that although ordinarily words may mean different things to different people, the law of defamation operates a legal fiction that words bear only a single meaning. It is the judge’s task to determine the single meaning, taking into account the context in which the words appear.
Applying these principles, Nicol J concluded that the ordinary reasonable reader would understand the Press Release to characterise the named persons as “hate speakers” and “extremists”, and to identify Dr Butt as someone who has promoted the “poisonous and pernicious” ideas to which the updated guidance was directed. The Judge thus concluded that the words complained of meant that Dr Butt is an extremist hate speaker who legitimises terrorism and from whose pernicious and poisonous influence students should be protected [31]-[32].
However, the Judge went on to decide that the words complained of constituted a statement of opinion. This has implications for the availability of a defence of honest opinion under section 3 of the Defamation Act 2013 (‘DA 2013’). In order to benefit from this defence, the words complained of must be recognisable as opinion, as opposed to imputation(s) of fact (s. 3(2) DA 2013). Nicol J was satisfied that reference to Dr Butt’s views being “on record” alluded to his publicly stated views and that the Press Release was simply expressing an opinion on those views. The Judge determined that whether someone is a “hate speaker” or “extremist” is “necessarily” a “matter of opinion” [35].
Lastly, the Judge considered whether the Press Release indicated the basis for this opinion. To qualify for the honest opinion defence, the words complained of must indicate, in general or specific terms, the basis of the opinion (s. 3(3) DA 2013). This requirement makes the reader aware of the subject matter of the comment, without which justification for the defence will be lacking (Joseph v Spiller [2011] 1 AC 852). Nicol J held that the Press Release did indicate, in general terms, the basis of the opinion, specifically the publicly expressed views of Dr Butt [39].
Comment
The Judge’s conclusion on meaning seems unassailable. It follows from application of the Jeynes principles, which are firmly established and well understood. Yet the Judge’s finding that the words complained of constitute a statement of opinion is surprising. A Government-issued press release, designed to keep the public abreast of counter-terrorism policy, is not a document in which the ordinary reasonable reader would easily infer expressions of opinion.
Further, Dr Butt’s case seems materially different from British Chiropractic Association v Singh ([2011] 1 WLR 133) which was relied on by the Judge. The defendant in Singh wrote that there was “not a jot of evidence” that chiropractic treatment could help ailing children. Eady J concluded that this was an imputation of verifiable fact. The Court of Appeal (reversing Eady J’s decision) found at [19]-[30] that this was instead a “value judgement” to which the defence of fair comment (now honest opinion) could apply. However, the statement in Singh appeared in The Guardian’s “Comment & Debate” section – a context very different from an official press release, as in Dr Butt’s case. The Court of Appeal’s scepticism as to Eady J’s approach (determining imputations of fact on the basis of verifiability) has, moreover, been queried by the Supreme Court in Joseph v Spiller [114]. For these reasons, the fact/opinion determination in Dr Butt’s case seems based on weak foundations.
The judgment also foreshadows a couple of interesting points to watch out for in future proceedings. First, the Home Secretary pleaded that the ‘single meaning rule’ is not carried over into the statutory defence of honest opinion. The Judge was not invited to rule upon this, leaving the matter open to be debated.
Second, it may be noted that Dr Butt’s case raises questions similar to those considered by the Court of Appeal in Clift v Slough Borough Council [2011] 1 WLR 1774, namely the extent to which the Human Rights Act 1998 impacts upon defences available to public authorities to negate tortious liability. Clift concerned the defence of qualified privilege, whereas in Dr Butt’s case, the Home Secretary appears to rely solely upon the statutory defence of honest opinion. It will be interesting to see how the courts view the effect of Clift on the scope of other defences to libel claims.
Finally, Dr Butt’s case makes an interesting contribution to contemporary debate concerning how to strike the balance between the freedom to receive and impart information and ideas, and the need to protect those at risk of being drawn into terrorism and extremism. It highlights the difficult position in which higher education institutions find themselves, treading a careful line between compliance with Prevent and the preservation of British universities as bastions of free speech and robust debate.
Natasha Holcroft-Emmess is a trainee barrister at Matrix Chambers.
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