In a recent judgment, Mr Justice Nicklin considered the meaning of an article, and he concluded that the defamatory sting of the piece was an expression of opinion. For journalists, the case illustrates the importance of considering carefully how best to present and express opinions in articles.

Last year, the Daily Mail published an article under the headline, “Building tycoons using staff discounts to snap up homes meant for families“. The article criticised the Claimant, businessman Steve Morgan, for buying, at a discount, six homes intended as affordable housing and renting four back to staff.

It was reported that Mr. Morgan claimed the natural and ordinary meaning of the words in the context in which they were published meant that:

• He had exploited his position to obtain massive discounts for himself;
• The six homes in question should have been available to families requiring affordable housing;
• He engaged in reprehensible dealing which had been rubberstamped by his co-directors; and
• He was lining his own pockets and was greedy and unethical.

On the other hand, the Defendant, Associated Newspapers, argued that Mr. Morgan put the needs of his staff ahead of those with affordable housing needs ; had behaved unethically and took advantage of his position; and, as a result, was worthy of public criticism.

In addressing the meaning of the article, Mr Justice Nicklin distilled it into three elements; the first two relating to issues of a factual nature which were not, in and of themselves, defamatory of Mr Morgan. These were that

• Mr Morgan was able to take advantage of an opportunity to purchase six houses built by his company that were intended to be sold for less-well off buyers as affordable homes – but which had failed to sell – after his company had been successful in getting local authority planning rules changed; and
• he purchased the six properties at a substantial discount, £860,000 against a market value of £2.1m and, as a result, stood to make a very large personal gain.

The third element contained the defamatory sting in the piece. The judge concluded that the meaning imputed was that, as a consequence of his actions, “the Claimant had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way.”

Moving on the next stage, Mr Justice Nicklin then concluded that this final element was clearly an expression of opinion, based upon the Claimant’s conduct. The judge also made clear that, at this juncture, he was not considering (and had not addressed) the strength of the Mail’s honest opinion defence.

For journalists, this case illustrates the importance of considering carefully how best to present and express opinions in articles.

Practical tips to consider include:

• is it clear that the statement is an opinion rather than a factual allegation? A reader needs to be able to clearly distinguish the points from each other;
• making clear the basis upon which an opinion is held. Here, accurately reporting on an issue and then commenting upon it is preferable to making an assertion without explaining the context behind it; and
• whether you can substantiate the opinion with reference to existing factual information or something asserted to be a fact in a privileged statement. Here, consider the factual basis for the point you are trying to make before publishing and refer to that information in your article.

All in all, this is a judgment which journalists will find helpful. Not only is it often difficult to decide what an article means, but it’s also surprisingly tricky to decide whether an article is an expression of opinion or a statement of fact.

This is why guidance from the Courts on these issues is always to be welcomed – though it’s almost certainly the case that one or other of the parties to the case itself will feel less kindly about the outcome!