The line between statements of fact and opinion can be a fine one. And what about the threshold for a statement to be considered defamatory at common law? The Court of Appeal judgment in the case of Richard Millett v the Right Honourable Jeremy Corbyn MP provides a useful insight.
Last Summer I wrote a column about the case, which focused on the High Court’s judgment that Mr Corbyn’s statements did refer to Mr Millet by virtue of innuendo meaning, even though the statements did not name him.
The ruling last summer also decided that the statements made by Mr Corbyn were statements of fact, rather than opinion, and that they were defamatory at common law.
By way of a reminder of the background of the case, Mr Millett, the Claimant, is a blogger and commentator who writes on a number of subjects including anti-semitism and Israel.
In 2013, Mr Corbyn made a speech in which he referred to an earlier occasion where a speech had been given by the Palestinian Authority’s Ambassador about the history of Palestine and the rights of the Palestinian people. He then went on to allege that “silent Zionists” who were in the audience of that speech went up to the speaker and berated him afterwards. He stated that:
“They [the “Zionists”] clearly have two problems. One is they don’t want to study history and secondly, having lived in this country for a very long time, and probably all their lives, they don’t understand English irony either.”
Five years later, in August 2018, when Labour was under intense scrutiny for alleged anti-semitism within the party, a recording of the 2013 speech was made public for the first time. There was speculation as to who the alleged “Zionists” were. Mr Millett was named as one of the people Mr Corbyn had been referring to by the Times, the Guardian, Mail Online and on the BBC website.
In September 2018 Mr Corbyn was interviewed on the Andrew Marr Show. In that interview, Mr Corbyn was shown a video of his 2013 speech, and then faced questions from Andrew Marr. Mr Corbyn went on to allege that the two people he was referring to were so disruptive (as he alleged they had been at a number of meetings) that the Police wanted to remove them, and that they “were really, really strong” on the speaker afterwards, to the point that it upset the Ambassador.
Rolling forward to the most recent developments, Mr Corbyn appealed the High Court’s findings from last summer that the statements made by him were statements of fact rather than opinion, and that they were defamatory at common law. In a judgment handed down by the Court of Appeal last week, the Court rejected Mr Corbyn’s appeal.
It found that the original Judge had applied the law correctly and there was no justification for the Court of Appeal to interfere with his decision.
In relation to the fact versus opinion argument, the Court of Appeal reiterated that in the context of the broadcast in which they were said, the words “disruptive” and “abusive” were allegations of fact. However, it was noted that the finding is very much dependent on the context, and the words must be read or listened to once, without over-elaborate analysis when making that assessment.
Previous case law has found the same kind of statements to be statements of opinion, but in this case, in context, the Court of Appeal agreed that they were statements of fact which were said by Mr Corbyn by way of an explanation for his assertion that the “Zionists” did not understand English irony.
This determination is important because it prevents Mr Corbyn from relying on the defence of Honest Opinion, for the obvious reason that a statement of fact is necessarily not an opinion.
On the second ground of appeal – whether the statements were defamatory at common law – the Court of Appeal also agreed with the High Court ruling.
In doing so the Court of Appeal reaffirmed the two tests used to establish whether a statement is defamatory at common law.
The first test is whether the conduct attributed to the person in question tends to lower the Claimant in the estimation of right-thinking people generally. And therefore, whether the behaviour attributed to the person in question, in this case Mr Millett, “is contrary to the common or shared values of our society and modern community”.
The second test is whether the statement passes the “threshold of seriousness” – whether the imputation conveyed by the statement would tend to have a “substantial adverse effect” on the way people would treat the claimant.
The Court of Appeal agreed with nearly all of the High Court Judge’s reasoning as to why Mr Corbyn’s words satisfied these tests. Despite Mr Corbyn’s comments forming part of a highly charged political debate, in which both sides held strong views, the accusations that Mr Millet had behaved seriously abusively towards a public speaker to the point that the police wanted to remove him ultimately passed both elements of the test.
The High Court ruling that Mr Corbyn’s words were defamatory at common law therefore stands, but it is worth noting that the Claimant will have to address the statutory issue of “serious harm”, which is undoubtedly a higher bar, if the case proceeds to full trial.
So what does this mean for publishers?
Well firstly, remember that context is everything when considering whether a statement is one of fact or opinion – in one context a statement might be an opinion, and in another that same statement might be deemed to be a statement of fact. Each case will be dealt with on its own facts, within the framework of well-established legal principles.
And secondly, whilst from a legal point of view we often focus on whether a statement would pass the statutory “serious harm” test, it is still worth considering whether a statement would pass the common law seriousness test.
The statutory “serious harm” test is not generally considered until a full trial when evidence can be adduced, but if a statement doesn’t pass the “threshold of seriousness” test and is not defamatory at common law, it might give you the opportunity to dispose of a libel claim at an earlier (and far less expensive) point.
This is because the issue of whether a statement is defamatory at common law is usually dealt with by way of a trial of preliminary issues, which happens at an earlier point in the litigation process – if the Claimant fails to pass that test, their case will not proceed any further.
I doubt this will be the last time this case features in our column, so watch out for further updates as the case progresses.