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Law Column: Fact or opinion – a £185,000 question

footansteylogonewThe chief executive of Pakistan’s largest media group, has been awarded £185,000 in damages after a series of accusations that he was guilty of treason.

The damages were so high because serious allegations that Mir Shakil-ur-Rahman was a traitor to Pakistan were repeated over 24 episodes of a current affairs programme broadcast for year in the UK by the ARY Network. What is more, no offer of apology or withdrawal was made by the defendant.

ARY Network, which broadcasts in the UK, claimed that the words complained of were honest opinion, but the defence failed in all 24 examples.

As is often the case these days in defamation trials, the case was split into two parts. The first hearing was to decide on meaning, and in particular whether the words complained of were presented as fact, or as comment or opinion. The second trial was to decide whether the words caused serious harm to the claimant’s reputation and to put a value on this damage.

The law has a tolerant approach to honest opinion. The Defamation Act 2013 moved the goalposts in favour of freedom of expression by introducing the concept of ‘honest opinion’ rather than the old common law defence of ‘fair comment’. Even prior to the 2013 Act, Lord Nichols of Birkinhead said: “comment must be relevant to the facts to which it is addressed. It cannot be a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast may say what he honestly thinks as much as the reasonable person who sits on a jury.”

Mr Justice Haddon-Cave said in his ruling on the Shakil-ur-Rahman case. “The common law has always been fiercely protective of comment and opinion. Strasbourg jurisprudence has reinforced the importance of freedom of political debate in a democratic society. Statements about the motives and intentions of a third party are to be categorised as value judgments rather than factual assertions lending themselves to proof”.

The programme’s presenter was ‘polemical, rhetorical and extravagant’ in his broadcasts, all 24 of which the judge viewed in Urdu with their English translation. The presenter was at times ranting and satirical, also acceptable under the definition of honest opinion.

So where did the broadcaster go wrong, and what is the lesson for regional newspapers?

The judge found that because the presenter claimed he had evidence and witnesses to back up his claims that Shakil-ur-Rahman conspired with Indian intelligence agencies to further the interests of India over those of Pakistan, the real meaning of the offending words was factual, not an expression of opinion.

However, when the presenter stated that the claimant had acted ‘traitorously’ ‘disloyally” and ‘disingenuously’ and ‘betrayed’ the people of Pakistan, “thinks he is above the law” and “as a result he should have no right to live in this country…” this was taken as opinion.

There seems to be a fine line, but the 2013 Defamation Act helpfully spells out the formula for getting it right:

The conditions for ‘honest opinion’, are that the statement must be a statement of opinion. Secondly, it needs to indicate in some way the basis of that opinion. The third condition is that an honest person could have held that opinion on the basis of a fact that existed at the time of publication.

Therefore, a statement of opinion can be pretty strong, so long as it is clearly based on a fact already out there.

If the ‘reasonable reader’ recognises the offending statement as opinion, it will be incapable of causing the claimant ‘serious harm’ the threshold for succeeding in a defamation claim. But if fact masquerades as opinion, and the reader is left with the clear impression that the allegation is true, then the defence fails.

“The food at that restaurant was disgusting” is a statement of opinion, whereas “the food at that restaurant made my family violently ill”, is not. Therefore: “It seems to me that the restaurant needs a visit from food standards, given that my family were all violently ill after our visit”, provides both the opinion and the basis of the opinion.

So, when an interviewee makes a statement which on the one hand is a great quote, but on the other makes you a bit nervous, ask yourself the question: Is this an opinion or a fact – however it is dressed up. If the answer is ‘opinion’, the statement should be safe.

Finally, another notable characteristic of this case was that the claimant was based in Pakistan but sued in England. The programme was broadcast in Urdu to around 200,000 people in the UK, free to air on Virgin and Sky, and live on some websites.

As far as regional newspapers are concerned, a person does not have to be a global celebrity to claim serious harm in the UK. He or she may have sufficient contacts and local relatives for a defamatory statement to cause serious harm.

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  • December 20, 2016 at 11:29 am

    All too often fact is mixed with opinion in our national media, both the press and radio and television.

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