The Defamation Act 2013 (DA) sets out defences to defamation claims and one of them is honest opinion under section 3 of the DA, which upholds freedom of expression and the common law principle of fair comment.
The law
Section 3 of the DA states that:
“(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.”
First condition- statement of opinion
The assessment is how an ordinary person would understand the statements made – would the words be considered by an ordinary reader as a statement of fact or opinion? There is no clear boundary between the two. Pursuant to the case of Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB),
“opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.”
Some statements can be considered bare comments, i.e. the opinion implies that a claimant has done something but does not indicate what that something is. An example of a bare statement is ‘Mr Smith is a disgrace’ (Corbyn v Millett [2021] EWCA Civ 657). Although this can be evaluative, it fails to identify what the remark is about. The Court may decide that such a bare statement should be treated as a statement of fact and would likely only be defensible by demonstrating that the comment is substantially true.
Second condition- the defendant indicating the basis of the opinion
The test is provided in the case of Joseph v Spiller [2010] UKSC 53
“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.
Third condition- honest person could have held the opinion based on any fact existing at the time of publication
The law creates a broad test as the statutory wording ‘any facts’ (section 3(4)(a) of the DA) means that no express link is required between the facts indicated in the statement and the facts that can support the opinion. An opinion need not be fair or rational. It must merely be honestly held- the test is whether any person, however prejudiced, could honestly hold the defendant’s view. The emphasis is on honesty, not rationality.
Notwithstanding its broad scope, it is not without limitations. In the case of Riley v Murray [2022] EWCA Civ 1146, the Court held that, not only must there be some facts on the basis of which an honest person could have held the opinion but this basis must be indicated in some way in the statement complained of. In other words, the defendant does not need to prove the truth of every fact relied on, but a single fact that supports the opinion is sufficient. Also, there is a need for a connection between the subject matter of the statement and the supporting fact.
How can Nelsons help
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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