It’s been fairly quiet in the courts over recent weeks and months, for obvious, and good, reasons.  As a result, apart from case involving a celebrity couple presently living in LA, there hasn’t been a great deal for lawyers to chew over.  But a High Court judgment handed down last week has provided ample food for thought in these lean times about when an opinion might really be a fact…

The case in question is that of Eleanor Louise Hanson v Associated Newspapers and concerns an article published by the Mail on Sunday both online and in print back in July 2019.  The article reported on the then recent conviction of Carl Beech for multiple counts of perverting the course of justice in relation to the series of false allegations he made which implicated several high-profile figures as being involved in a paedophile ring.

The Claimant, Ms. Hanson, is a well-known clinical psychologist and therapist who works as a consultant to UK law enforcement agencies and argued that the Article bore the defamatory meaning that through  both her association with Beech, and her professional approach to cases of historic child sex abuse, she had been instrumental and blameworthy in ruining the reputations of several innocent individuals.

The Defendant advanced a lesser meaning, and argued that in any event, the general tone of the article itself would have been understood by readers to constitute the opinion of the author.

The parties opted for a trial of preliminary issues to determine firstly the natural and ordinary meaning of the words complained of, secondly the issue of whether the words complained of were factual or opinion, and finally if the words were opinion then did the piece indicate (either specifically, or in general terms) the basis for that opinion?

It is the second of these issues that is of interest here.  Were the words complained of statements of fact, or opinion?  Though at the time the judgment was handed down the Defendant had yet to file a defence in the claim, the fact that this was a preliminary issue to be tried indicates, at the very least, that a defence of honest opinion is being considered seriously.  As such, the answer to this question is vital.

It is often thought that the defence of Honest Opinion as set out in s.3 of the Defamation Act 2013 is quite straightforward as compared to some of the other defences available in a claim for libel.  However, on closer inspection, it seems as though this isn’t quite true and the reality of what constitutes a piece of opinion is quite a nuanced concept.

The Act states that the basis of the defence of honest opinion is as follows –

1. the statement is one of opinion;
2. the statement indicates, whether generally or specifically, the basis of the opinion; and
3. an honest person could have held the opinion.

In this case Mr. Justice Nicklin commented that upon reading the piece for the first time he had a strong impression that the piece was one of opinion but that the key issue to be decided was the extent to which statements of fact were also present.

For the purposes of this article, what Nicklin J decided isn’t that important.  Of far greater interest are the comments he made in his judgment whereby he highlighted one particular strand of the Defendant’s argument in which they advanced that the inclusion of the words “I believe” meant that the statements following must be the author’s “deduction or inference” and therefore must be a statement of opinion.

In response to this point, Nicklin J said, “On its own, the insertion of “I believe” before what would otherwise be a statement of fact certainly does not convert it into a statement of opinion”. The Judge  noted that in the context of the case in question, there was nothing further to support the statement being one of opinion rather than fact and that the inclusion of the words “I believe” was of itself, not sufficient to do so.

This case serves as a reminder to journalists and legal practitioners alike, that what seems simple – following the conditions set down in the Act – really isn’t that simple at all.

When it comes to arguing a defence of honest opinion, the passages in question will be subjected to a detailed scrutiny to determine whether they can truly be classified as opinion, and based on this decision, it seems as though it will take more than token words to prove it.  Context is everything.