The decision in a preliminary issue hearing in the case of Wasserman v. Freilich in the High Court last week serves as a reminder of the difficulties of successfully pleading a defence of honest opinion to a claim in defamation.

The case at hand involved a dispute between the parties over emails that had been sent by the Defendant in which allegations of dishonest and fraudulent behaviour were made about the Claimant. The Defendant argued that the statements complained of were subject to the defence of honest opinion, but it was held by the Judge that the allegations made were statements of fact, rather than opinion, and therefore that the defence as pleaded could not succeed.

Despite the deceptively simple moniker, the defence of honest opinion is one that is notoriously difficult to sustain. You could be forgiven for thinking that defending a publication on the grounds that it is a piece of “honest opinion” would be relatively straightforward. Surely, it’s just a case of having an opinion and publishing it?

But sadly, as we all know, when it comes to the law, things are rarely as simple as they first appear.

So first, let’s have a quick recap:

In order to plead a defence of honest opinion pursuant to s.3 of the Defamation Act 2013, there are a number of statutory conditions that will need to be satisfied;

1. The statement complained of must be a statement of opinion, not a statement of fact;
2. The statement must indicate, at least in general terms, the factual basis of the opinion; and
3. The opinion stated must be one that could have been held by an honest person in possession of the facts.

It is well established that the crucial point lies in deciphering where the line is drawn between what is considered to be fact and what is opinion.

The recent decision in Wasserman v Freilich hasn’t broken any new ground in helping to answer this surprisingly difficult question. What it does do, however, is offer a useful restatement of the key points, and attempts to clarify the known principles.

In his judgment, Sir David Eady said:

“There has been some debate as to whether the appropriate dividing line between statements of fact and statements of opinion depends on whether the relevant defamatory allegation is verifiable or not…If a statement is capable of being proved to be true, then a defendant would now be able to rely on a s.2 defence [truth]…If [not] a defendant might well be able to take advantage of s.3 [honest opinion].”

Again, this seems straightforward: if you have the all the facts and evidence, why not plead Truth? And if you don’t have enough evidence to prove your allegations if challenged, but do have enough on which to base some inferences, you can try honest opinion.

However, a very important point to note, and one which Sir David emphasised in his judgment, is that if you don’t have all the facts, a qualifying statement such as “I think” or “It seems to me” is not going to absolve you where the allegations are very serious. From this it is clear that whilst there has to be a degree of factual basis to support the opinion, it’s the required extent of this factual basis that is unclear.

Unfortunately, this is not something that has yet been definitively tested in a court, and until this has happened the question of when an opinion is really a fact remains.

And it’s this conundrum which means that when it comes to defences for a claim in defamation, honest opinion should always be at the back of your mind, not at the forefront.