On 6 June 2019, judgment in an appeal brought by Dr Salman Butt against the Home Secretary was handed down by the Court of Appeal ([2019] EWCA Civ 933).  The case concerned an action in libel which had arisen from the publication of a press release on the government’s Prevent policy.

The Court of Appeal dismissed Dr Butt’s appeal.  In doing so, it set out the approach to be applied when determining the defence of ‘honest opinion’ under s.3 of the Defamation Act 2013, as well as providing obiter remarks concerning the defence under s.3 where the words complained of constitute inferential statements of fact.

Background

Dr Butt was the Chief Editor of a website called Islam21C.  He was named in a press release, published in September 2015, by the Home Office.  The press release concerned the government’s Prevent policy, aimed at reducing extremism in academic settings.

Butt brought a claim in defamation against the Home Secretary.  In addition, he brought a judicial review against the Home Secretary, as well as claims under the Data Protection Act 1998 and the Human Rights Act 2003.  Those proceedings have also concluded before the Court of Appeal (R (Butt) v Home Secretary [2019] EWCA Civ 256).

Libel claim at first instance

At first instance, Dr Butt argued that the natural and ordinary meaning of the words meant that he was an extremist hate speaker and was likely to radicalise students.  The Secretary of State, in contrast, argued that the words complained of meant that Butt was someone who had expressed views contrary to British values.

The Home Secretary also advanced two defences in the alternative, under the Defamation Act 2013, s.3 (honest opinion).  Each defence related to the opposing meanings of the words complained of posited by Dr Butt and the Home Secretary.

At a preliminary hearing, Nicol J found that the meaning of the press release was that proposed by Butt ([2017] EWHC 2619 (QB).)  However, he also found that the statement complained of was a statement of opinion and that the Secretary of State had a defence under s.3 of the Defamation Act 2013.

Judgment

The Court of Appeal agreed with Nicol J’s finding on the meaning of the words complained of.  The court reiterated the principles as set out in Jeynes v News Magazine Ltd [2008] EWCA, Civ. 130, as affirmed in Stocker v Stocker [2019] UKSC 17.  The Court of Appeal considered that Nicol J had applied the law correctly, having considered the words in the context of the wider press release.  In  its view, it would only have been possible to arrive at the meaning advanced by the Home Secretary by engaging in over-elaborate analysis.

The Court also agreed with Nicol J’s finding that the Secretary of State had a defence under s.3 of the Defamation Act 2013.  In order to succeed on this point, the Home Secretary had to demonstrate three things.  First, that the statement complained of was a matter of opinion.  Secondly, that the statement indicated the basis of the opinion.  Thirdly, that an honest person could have held the opinion on the basis of a fact published at the time the words complained of were published.  The matter in issue before the Court of Appeal was whether the words complained of constituted fact or opinion.

As stated by the Court of Appeal, the test to be applied when determining whether a statement constitutes fact or opinion is “how the statement would strike the ordinary reader” (at [38]).  The Court was of the view that the ordinary reader would understand the statement about Butt in the press release to be a “highly value-laden”, evaluative one (at [49]), as opposed to an inferential statement of fact.  And, as stated by the Court of Appeal, “governments have views and opinions and often express them publicly” (at [50]).

Comment

The decision in Butt provides welcome guidance on the correct determination of ‘honest opinion’ under the Defamation Act 2013.  The Court was expressly influenced by the development of the common law defence of fair comment.

Following Butt, when deciding whether a statement is a fact or opinion, it will be necessary to consider the subject matter, the nature of the allegation and the context of the relevant words (at [39]).  In this case, the Court of Appeal went to lengths to stress the importance of context.  However, courts will have to be careful when balancing the competing interests of considering the context in which the words appear and avoiding over-elaborate analysis.

In addition to providing guidance on the general principles to be applied, the Court of Appeal made obiter remarks on the defence of ‘honest opinion’ where the words complained of consist of inferential statements of fact.  As articulated by the Court, there exists a long standing principle that comment can include inferences of fact.  Therefore, the mere fact that a statement may in principle be capable of being objectively proved, does not preclude it from protection under s.3 of the 2013 Act.  Consequently, the Court was of the opinion that even if the words complained of were regarded as an inferential one of fact, the Home Secretary’s defence would still have succeeded.

The courts have traditionally been wary of allowing litigation to become an ancillary arena for the determination of the factual foundation for controversial topics (see the decision in British Chiropractic Association v Singh [2010] EWCA Civ 350).  The robust, albeit obiter, remarks of the Court in Butt signal that there has been no shift in judicial policy under the Defamation Act 2013, despite the abolition of the common law defence of fair comment.

Samuel Rowe is a student at the University of Oxford.