18 February 2020 - Article
How does the defence of “Honest Opinion” offer protection from a defamation claim? The right for a person to express their honest opinion without worrying about being sued is taken for granted by anyone lucky enough to live in a liberal democracy. You don't need a lawyer to tell you that people should be able to express their thoughts and opinion without being sued for damages, or thrown into prison. Defamation law in England and Wales has always reflected the public importance of protecting this sort of opinion, with the new Defamation Act 2013 marking a long overdue overhaul of one of defamation law's more outdated and ambiguous defences. The law has been changed to keep up with modern forms of communication, with opinions no longer the preserve of newspaper editorial columns. With large swathes of the population now communicating their opinions in tweets, Amazon reviews, Facebook posts and subreddits published instantaneously and without any consideration of legal ramifications, the old law sorely needed to modernise. Section 3 of the Defamation Act 2013 attempts just this by abolishing the old common law defence of ‘Fair Comment' entirely and implementing a broader statutory defence, newly-titled Honest Opinion. The Honest Opinion defence Like other parts of the Defamation Act, Section 3 has been drafted with the intention of making it as accessible as possible to read (at least relative to other statute), so that anyone can read it and understand in broad terms when the defence might apply. This is an important change given the growth of online publication and the accompanying growth in defamation complaints against private individuals. The defence of Honest Opinion applies if three conditions are met: 1. the statement complained of was a statement of opinion; 2. the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and 3. 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; or b. anything asserted to be a fact in a privileged statement published before the statement complained of. The defence does not however apply if the person claiming defamation can show that the author of the comment did not in fact hold the opinion. Commentary Significantly, the Honest Opinion defence no longer requires that the opinion is being expressed on a matter of ‘public interest', a previous requirement made unworkable by the digital age and an appreciation that online opinion should be protected whether or not it is in the public interest. Condition 1 remains the same as the under the old Fair Comment defence: statements must be opinion and not assertions of fact. When assessing whether something is or isn't ‘opinion', the courts will consider which side of the line a reasonable person would think the statement falls. Condition 2 provides that the damaging opinion must somehow indicate, at least in general terms, on what facts the opinion is based. This reflects a 2010 Supreme Court decision (Joseph v Spiller), and requires those expressing opinions to allow their readers or listeners to understand what they are basing their opinion on, the idea being therefore to allow people to make up their own minds on the same facts. Condition 3 implements an objective test to establish whether the opinion is honest — namely whether an honest person could have held the opinion expressed based on either any fact which existed at the time the statement was made or anything expressed to be a fact in a privileged statement, but which may turn out to be false. Privileged statements are statements which could be defended on any of the grounds listed in subsection (7). Notably, the wording of Condition 3 may allow a defendant to rely on the defence if they can find any pre-existing fact that is accurate and would allow an honest person to express the opinion complained of, whether or not the facts actually relied on in reaching the opinion were true. Summary The new defence of Honest Opinion is a welcome reworking of the law that should offer more understanding of the defence and eventually more clarity as to when it applies. In time, this should better protect those publishing in good faith whatever the medium from paying not only a penny, but a whole lot more, for passing on their thoughts. This can only be a good thing.