The Honest Opinion Defence in English Defamation Law
What is the Honest Opinion Defence in Defamation Law?
In English defamation law, the honest opinion defence (formerly known as fair comment) protects defendants who have expressed an opinion rather than stated a fact. It is a statutory defence introduced by the Defamation Act 2013 to replace the old common law defence of fair comment. In essence, if a defamatory statement is recognisable as an opinion that is based on true (or privileged) facts and genuinely held by the speaker, the defendant may escape liability even if the opinion is harsh or critical. The following article provides a detailed overview of the honest opinion defence, tracing its historical evolution, explaining the current statutory requirements, examining key judicial interpretations (with recent case law), and critically assessing its strengths and weaknesses in practice.
The Honest Opinion Defence Under the Defamation Act 2013
The current law on honest opinion is set out in section 3 of the Defamation Act 2013. To successfully invoke the defence, a defendant must prove three conditions as defined by the statute:
- Opinion: The statement complained of was a statement of opinion. The words must be recognisable as the defendant’s opinion, comment, deduction, criticism, judgment, or remark, rather than an allegation of objective fact. This first condition captures the distinction between statements of fact and statements of opinion.
- Basis of the Opinion: The statement indicated, whether in general or specific terms, the basis of the opinion. In other words, the publication should contain or refer to the facts that led to the opinion, at least in general outline. The defendant does not need to detail every fact, but the reader or viewer should have an idea of what the opinion is about (the context or facts on which it is based).
- An Honest Person Could Have Held the Opinion: An honest person could have held the opinion on the basis of (a) any fact which existed at the time the statement was published, or (b) anything asserted to be a fact in a privileged statement published before the statement in question. This is an objective test: given the underlying facts that were true or privileged, could a person honestly hold that view? The supporting facts can be those proven true in the proceedings or facts protected by privilege (for example, facts stated in parliamentary proceedings, court judgments, or other privileged contexts, even if not proven true in court, may be relied on as a basis).
If these three conditions are satisfied, the defendant will have established a prima facie defence of honest opinion. However, section 3 also provides a defeater: the defence will be defeated if the claimant proves that the defendant did not genuinely hold the opinion they published. In other words, if the claimant can show the defendant was lying – that the opinion was not honestly held but was published in bad faith or out of malice – then the defence fails. This reflects the long-standing rule that malice vitiates the defence (though in practice, proving someone’s subjective disbelief in their stated opinion is very difficult).
It is important to note that the defence covers both authors and secondary publishers in certain cases. If the defendant is not the actual author of the statement (for example, a newspaper publishing a letter or a quote from someone else), the Defendant can still use honest opinion as a defence, but an extra proviso applies: it must be shown that the person who made the statement actually held the opinion. If the publisher knew or had reason to believe the author did not hold that opinion, the defence cannot be used. This prevents publishers from recklessly disseminating others’ statements of opinion that are not sincerely held by their authors.
To illustrate the statutory test, consider a restaurant review that says: “The service at Restaurant X was appalling – in my view, it was as bad as one can imagine.” If the owner of Restaurant X sued for defamation, the reviewer could invoke honest opinion. The statement “service was appalling” is clearly an opinion (a value judgment) about a matter (the service) that the review presumably describes. The review itself would typically explain the poor experience (e.g. long wait times, rude staff – those would be the facts indicating the basis). As long as those factual incidents actually happened (true facts) or came from elsewhere (say, another article or a customer report) and the opinion was honestly the reviewer’s own, the defence would succeed even if the words are strongly pejorative. Crucially, it would not matter whether the restaurant is a public figure or whether the subject is of high public importance; post-2013, an opinion need not involve a public interest matter.
The Defamation Act 2013 thus largely codified the previous common law while simplifying it. As Mr Justice Nicol observed in Butt v Secretary of State for the Home Department EWHC 2619 (QB) [2017], “much of section 3 effectively codified the defence of fair comment” and earlier common-law principles continue to guide its interpretation. The main substantive change was abolishing the public interest requirement, making the defence more accessible. In practice, the three statutory conditions correspond to the traditional elements (opinion, factual basis, honest belief/objective test) refined by cases like Spiller and another v Joseph and others [2010] UKSC 53, [2011] 1 AC 852. Therefore, pre-2013 case law remains relevant in understanding how courts identify an opinion and evaluate whether the basis is indicated and sufficient. The statute, however, now provides a clear framework and terminology (“honest opinion”) that underlines the primacy of the speaker’s honest belief and the presence of a factual foundation.
How Courts Apply the Honest Opinion Defence
Since the introduction of the statutory defence, the courts have elaborated on how to apply these requirements in practice. Several key issues have been addressed in recent judgments: how to distinguish fact from opinion, what counts as indicating the basis of an opinion, how the objective test is applied (especially if facts turn out to be false or incomplete), and the role of context and meaning. Below, we explore these considerations with reference to leading cases and judicial commentary.
How to Distinguish Fact from Opinion in Defamation
The threshold question is whether the defamatory statement is one of fact or opinion. This determination is crucial: a statement of fact cannot be defended as honest opinion. The courts use an objective test, considering how the words would strike the ordinary reasonable reader (or viewer) in context. In Koutsogiannis v Random House Group Ltd EWHC 48 (QB) [2019], Nicklin J set out a helpful summary of principles for this fact/opinion distinction:
The statement must be recognisable as comment or opinion, as distinct from an assertion of fact. Common indicators of opinion include evaluative or judgmental language, figurative expression, or phrasing like “in my view” or “I think”. Conversely, a bald allegation like “X committed a crime” reads as factual.
- Opinion is something that can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark or observation. In other words, it is a subjective evaluation by the author. For example, calling a politician “incompetent” is an opinion; stating that the politician misspent £1,000 of public funds is a fact (albeit one that might lead someone to form an opinion about incompetence).
- The context and subject matter are important. The entire publication (and the style of the material) might signal whether a piece is meant as commentary or as reportage. A piece in an op-ed or review section is more likely opinion; a news report usually conveys factual allegations. The hypothetical reasonable reader is assumed to read between the lines and identify tone and genre.
- Some statements that appear to be opinions may actually imply unstated defamatory facts. Courts have identified the problem of “bare comment” – where an opinion is expressed but without any reference to what it’s about, leaving the reader to speculate that there must be undisclosed damaging facts. For instance, writing “Mr. Jones is a disgrace” or “Councillor Smith is corrupt” with no further context looks like an opinion, but it implies there are facts (unspecified misconduct) justifying that label. Such a statement can be treated as a statement of fact in law, because the reader cannot discern the factual basis and may assume the worst. The Court of Appeal in Corbyn v Millett EWCA Civ 657 [2021] affirmed that this kind of bare allegation (an insult or aspersion with no hint of rationale, e.g. simply calling someone “a disgrace”) will not be protected as opinion. The defendant must at least indicate what the disgraceful conduct is; otherwise, the law treats it as an unproven factual smear.
- There is no rigid rule that certain words (like “dishonest” or “criminal”) are always facts or always opinions – it depends on context. Describing someone’s behavior as “dishonest” could be an opinion if, for example, it’s clearly a conclusion drawn from stated facts (say, a journalist outlining known conduct and then commenting that it was a dishonest course of action). However, if one simply says “X is dishonest” without more information, that might be taken as asserting the fact of dishonesty. The nuance lies in whether the reader can recognise it as the author’s inference from other facts or whether it comes across as a standalone allegation.
In practical terms, courts often resolve the fact vs opinion issue at an early stage (sometimes at a preliminary hearing), because it can be determinative. For example, in Butt v Secretary of State for theHome Department EWHC 2619 (QB) [2017] (a case concerning a press release that named an individual as an extremist speaker), one of the preliminary issues was whether the words were opinion or fact. The press release stated that certain speakers (including the claimant) had expressed views contrary to British values. The court had to decide if this was presented as a factual assertion about the claimant or an evaluative opinion by the government. The resolution of meaning often feeds directly into whether the honest opinion defence is available at all. If the court decides the statement would be understood as an allegation of specific wrongdoing (fact), the defence cannot be used; if it’s an evaluative judgment (opinion) on disclosed events, the path is open to honest opinion (subject to the other conditions).
What Counts as the Basis of an Honest Opinion?
The second condition requires that the statement complained of indicates the basis of the opinion. The rationale is that readers should have at least a general idea of what the opinion is about or what provoked it, so they can evaluate the opinion’s merit. This does not mean the publication must contain a full catalogue of facts or evidence – general or implicit indication suffices. What amounts to a sufficient indication has been explored in case law:
Often the surrounding text of the publication provides the context. In a typical newspaper article, for example, the factual background may be reported in earlier paragraphs, and the opinion or comment follows. In a TV broadcast, the visuals or introduction might supply the facts. The requirement can be satisfied either explicitly (stating the facts) or implicitly (if the context makes the subject clear). If a columnist writes “Given the council’s wasteful spending on project X, Councillor Y is unfit for office”, the basis (wasteful spending on X) is indicated. Even a more general preface like “After last night’s debate, I believe Candidate Z showed his true character: he is a liar” implies that something in “last night’s debate” is the basis for calling Z a liar. That might meet the indication requirement, albeit generally. By contrast, simply stating “Candidate Z is a liar and unfit for office” with no reference to any event or facts would likely fail – nothing tells us what that grave accusation is drawn from.
The Court of Appeal in Riley v Murray EWCA Civ 1146 [2022] (a Twitter libel case) confirmed a straightforward approach to this condition. Warby LJ stated that “the only question raised by section 3(3) of the 2013 Act is whether the statement complained of indicated the basis of the opinion which it contained.” In other words, the court should simply look at the words and context and ask: do they point to what the opinion is about? There is no additional requirement that the basis be adequate or that all readers grasp it fully – it either is indicated or it isn’t.
Importantly, the indicated facts need not all be correct or even stated in full in the publication, as long as they existed and are sufficiently alluded to. This was an issue in Spiller and another v Joseph and others [2010] UKSC 53, [2011] 1 AC 852 and remains so – what if the author had more facts in mind than were shared with the audience? Historically, defendants sometimes tried to rely on unstated facts (known to them) to justify a comment. The current law, consistent with Spiller, expects at least a general reference in the publication to those facts. If the author had crucial information but gave absolutely no hint of it to readers, that gap could be fatal (because then the readers were left in the dark – akin to a bare comment). On the other hand, if facts are in the public domain or notorious, a broad reference might be enough. For example, in a review one might not re-describe a plot known to all, but the opinion “this sequel is a disaster” implicitly indicates the basis (the content of the film) which the audience likely knows.
Cases like Butt (2017) demonstrate how the meaning finding and the indication requirement intersect. In Butt, the context was a government press release about an extremism taskforce. The allegedly defamatory implication was that Dr. Butt was an extremist speaker harmful to students. The defence of honest opinion was considered by Nicol J after determining what the words meant. If the meaning had been that he actually is an extremist (a factual allegation), honest opinion would not apply, but if the meaning was that the government held the opinion that he holds views contrary to British values (more value-laden), then it could qualify as opinion. The press release itself provided some basis (listing certain events and his inclusion in a list of speakers), which might be taken as indicating why the government held that adverse view. Though this case ultimately turned on serious harm and actual meanings, it exemplifies the careful parsing courts do in opinion cases.
A tricky scenario is when an opinion is based on a single specific fact that turns out not to be true. The Court of Appeal has held that if the sole basis cited for an opinion is false, the defence will fail at the third condition (no honest person could hold the opinion on a non-existent fact), but it also means the basis indicated was effectively insufficient. A recent illustration is Sir James Dyson v MGN Ltd EWHC 3092 (KB). Although primarily about other issues, one question was whether a newspaper could defend an opinion that Sir James Dyson had behaved in a certain way, when the only factual premise given was found to be wrong. The court confirmed that a single false fact cannot support an honest opinion – you cannot say “I think X (defamatory opinion) because of Y” if Y is proved false; the defence collapses. This underscores that while the second condition (indicating the basis) is a low-threshold question, it ties into the third condition (the truth of that basis) in practice.
Can an Honest Person Hold the Opinion? Legal Test Explained
The third condition – that an honest person could have held the opinion on the basis of true or privileged facts – has an objective flavor. It is not necessary to show most people or a reasonable person would share the opinion, only that someone could honestly hold it. This is a relatively easy test to satisfy in most cases, and it is meant to weed out only the most untenable opinions (those that no honest person could sincerely state on the given facts). As Lord Diplock famously put it in an earlier era: “Would a fair-minded man holding strong views… have been capable of making this comment?” If yes, then the opinion passes the objective test, even if it is exaggerated or prejudiced.
Key points and case law on this element include:
- Low Threshold: Courts have consistently held that the opinion need not be reasonable, nor one that the judge would hold – merely an honestly possible view. In the Canadian case Chernesky v Armadale Publishers Ltd 90 DLR (3d) 321 (SCC) (1978) (often cited historically in Commonwealth jurisprudence), the test was phrased as whether any person could honestly have that opinion on the proved facts. The Defamation Act 2013 essentially codifies this: if the facts could logically or plausibly lead someone (not necessarily everyone) to the conclusion, the requirement is met. This protects minority views, hyperbolic and satirical opinions, and even “prejudiced” viewpoints, as long as they derive from some real facts.
- Truth or Privilege of Basis Facts: The facts that form the basis of the opinion must be either proved true in the proceedings or already protected by privilege. If the defendant cannot establish the truth of a factual premise that is essential to the opinion, the defence is in trouble. For example, if a publication says, “Based on the investigation that found the CEO lied to investors, I believe the CEO should be sacked as dishonest,” and it turns out no such investigation finding exists (or the finding was false), then no honest person could hold the opinion because its foundation is absent. This links the honest opinion defence with the truth defence – while you need not prove every fact in your commentary true, you must prove the existence of a reasonable factual foundation. If all you have is an invented fact or serious inaccuracy, honest opinion fails just as fair comment would have. That being said, minor inaccuracies that do not change the gist might not be fatal, especially if there are other supporting facts.
- Multiple vs Single Facts: A nuance arises when an opinion is based on multiple facts. Suppose a column makes a value judgment drawing from several pieces of information, some of which are true and one of which is not. Can the defence still succeed? The objective test is flexible – it asks whether an honest person could hold that view on any of the facts that existed. It does not strictly require that every fact cited be true, as long as an honest person could have come to the same opinion from the remaining true facts alone. In practice, courts might disregard an insignificant false detail if the core factual basis stands. But if the only real basis or the crux of the opinion is false, the defence fails. In Dyson v MGN Ltd [2023] EWHC 3092 (KB), the High Court considered whether a defendant could rely on extraneous facts not actually mentioned in the article to bolster the honest opinion defence. The Judge held that, in principle, if there were other true facts known at the time (even if not referred to in the publication), the Defendant is not strictly confined to the one fact mentioned when arguing that an honest person could have that opinion. However, the scope for using undisclosed “contextual” facts is limited – the publication still must have indicated the gist of the basis. This point highlights that the boundary of what facts count can be complex; but fundamentally, the defence will succeed if enough of the factual substrate is solid to make the opinion an honestly debatable one.
Illustrative Case – London Artists v Littler (1969): In this pre-2013 case, a theatre producer made a press statement implying that some actors had withdrawn from a play due to union agitation. He was sued, and he raised fair comment, arguing it was his opinion on a labour dispute (public interest). The court held it was fair comment since the factual basis (the withdrawal of actors and surrounding circumstances) was substantially true and the view he expressed (that the union was to blame) was one a person could honestly hold on those facts. This shows how an honest opinion can be spirited or partisan yet still protected if facts support it. Modern cases similarly ask: given what happened, could someone hold this view? If yes, the defence is available (assuming no malice).
Can Malice Defeat the Honest Opinion Defence?
Finally, even if the three core conditions are met, the claimant can attempt to defeat the defence by showing the defendant did not honestly hold the opinion expressed. This is essentially a malice test – a subjective inquiry into the defendant’s state of mind. If the claimant proves the defendant was actuated by some improper motive or knew they did not truly believe what they were saying, the protection is lost. For example, evidence that a defendant knew the facts were false or did not believe their own criticism would destroy the defence, because it would show the comment was not genuinely made in honest belief.
In practice, courts have always set the bar high for claimants to prove such bad faith. The defendant’s honest belief is presumed; it is not for the defendant to prove their own sincerity (that was established by oath, effectively). Instead, the burden is on the claimant to bring clear evidence of dishonesty or malice. Classic examples might include a private letter or recording where the defendant admits, “I know this isn’t true but I want to ruin them,” or situations where the opinion is a mere pretext for personal spite unrelated to any factual basis. Short of such evidence, judges are reluctant to find that a published opinion was not actually held by the writer. As Eady J noted in Branson v Bower QB 737 [2002], even if a commentator distorts facts, that might be deemed dishonest and relevant to malice or the objective test, but one must be careful – a distortion can also simply mean the opinion is based on a biased take on facts, which is still protected if genuinely believed.
Post-2013, there have been few instances of the malice proviso being successfully invoked, mirroring the rarity under the old law. One reason is that if a claimant can prove the defendant knowingly lied about facts, usually the case would be fought (and won by the claimant) on the basis that the factual foundation was false (thus failing condition three) or as straightforward factual defamation with no defence, rather than needing to go to malice. Still, the malice safeguard exists in statute as an ultimate check against abuse of the defence. It reminds commentators that the law protects honest opinion – not disingenuous attacks cloaked as opinion.
Case Law on Honest Opinion in Defamation Claims
To illustrate how the honest opinion defence works in real cases:
- Yeo v Times Newspapers Ltd EWHC 3375 (QB): Tim Yeo, a former MP, sued a newspaper over allegations in an article and an editorial suggesting he had behaved improperly (an apparent “cash for advocacy” scandal). The High Court (Warby J) upheld the newspaper’s defences. Some statements were defended as true, but importantly the newspaper’s value judgments about Yeo’s conduct (such as calling him “a shameless opportunist”) were held to be honest opinions. The article had set out the underlying facts (e.g. what Yeo had done, based on an undercover investigation). Given those facts, it was clearly the paper’s opinion that his behaviour was shameless. The court found that was an opinion a journalist could honestly hold on the proven facts, and there was no evidence of malice. This meant Yeo’s libel claim on those comments failed – a high-profile demonstration of the honest opinion defence succeeding.
- Butt v Secretary of State for the Home Department EWHC 2619 (QB) (2017): Dr. Salman Butt claimed a Home Office press release defamed him by implying he was an extremist who legitimises terrorism. The court’s task was complicated: first it determined the meaning (which was indeed that he had aired views contrary to British values, thus implying he was an extremist threat). The government relied on honest opinion, arguing the press release comments (in a “Notes to editors” briefing) were value judgments by the Extremism Taskforce based on Butt’s public speeches. Nicol J ultimately accepted that the statement was one of opinion and that the government could, in principle, use the defence at trial. He confirmed that previous common law principles (like those from Barron v Collins and others) still applied to interpreting section 3. The case affirmed that even statements by government officials can be treated as opinions if they amount to evaluations of someone’s actions against certain values, rather than assertions of provable fact. The claim was later dismissed on other grounds, including lack of serious harm.
- Corbyn v Millett EWCA Civ 657 (2021): This case involved a tweet by an elected councillor (Millett) referring to Jeremy Corbyn. The tweet said: “Jeremy Corbyn is a disgrace to his party and his country.” Corbyn sued. The Defendant argued it was an honest opinion. The Court of Appeal agreed with the first-instance judge that this was effectively a bare comment – it did not indicate any specific conduct of Corbyn that was the basis for calling him a disgrace. It just hurled an insult. Warby LJ held that the statement implied undisclosed defamatory facts (why exactly is he a disgrace?) and therefore was to be treated as a factual allegation (of unspecified misconduct), not a protected opinion. Millett’s defence failed on the first and second conditions: the words were not clearly opinion in context, and they gave no factual basis. The outcome underscores that on social media, the brevity and lack of context can make it risky to assume an “opinion” will be protected – one needs to at least reference what it’s about (for example, “because of his handling of X, Corbyn is a disgrace” might fare differently).
- Riley v Murray EWCA Civ 1146 (2022): A high-profile libel feud on Twitter between a TV presenter and a political activist ended up in the Court of Appeal, which considered (among other issues) the honest opinion defence. Warby LJ reiterated that the only issue for the second condition is whether the basis was indicated. The case turned on subtle meaning issues and whether the tweet in question was a factual accusation or an opinion about the presenter’s behaviour. Ultimately, the court found the tweet (which accused the Claimant of inciting abuse by how she commented on an incident) was a factual imputation, not mere opinion, so honest opinion did not avail the Defendant. The decision provided clarity on applying the statutory tests and the need for precision when invoking opinion on Twitter – context is everything.
- Dyson v MGN Ltd EWHC 3092 (KB) (2023): Sir James Dyson sued a newspaper over an article implying he had acted improperly via a business arrangement. The Defendant advanced an honest opinion defence for the more comment-like portions of the article (such as insinuations about Dyson’s ethical stance). The High Court’s judgment, aside from dealing with serious harm, examined how the defence operates when the article’s factual basis might be incomplete or partly outside the text. The Judge held that while the Defendant cannot introduce wholly new justification at trial under the guise of honest opinion, it can point to facts that did exist at the time (whether or not mentioned) to show an honest person could hold the view. The court also downplayed any requirement to present full context or balancing facts in the publication – section 3 does not demand that the opinion be “fair” or give both sides, only that it’s honestly held and based on some substratum of fact. In the end, some of the newspaper’s statements were found to be factual allegations (requiring proof of truth) rather than opinion, demonstrating again how critical that initial categorisation is.
In summary, recent case law has largely reinforced the generous scope of the honest opinion defence while policing its boundaries. Judges have been careful to ensure genuinely defamatory factual allegations are not camouflaged as “opinion”, but they have also been willing to protect emphatic, even strident expressions of opinion that meet the statutory criteria. The honest opinion defence, as applied, dovetails with the broader trend of courts recognising the importance of free expression, especially where the statements in question are value judgments or commentary rather than verifiable allegations of fact.
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