The new Defamation Act abolishes the common law defence of fair comment and replaces it with the statutory defence of Honest Opinion. Those wishing to rely on the Defence must rely on the following conditions:
- That the statement complained of was a statement of opinion. If it is not obvious whether the statement is a matter of opinion or not, it is for the court to rule on an objective basis whether the statement was a comment or not.
- That the statement complained of indicated whether in general or specific terms, the basis of the opinion.
- That an honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was published.
The defence is not a particularly radical departure from the previous law, however, an anomaly is created by the third condition above. This provision appears to cover situations where an author of a statement writes something which is defamatory, then later, when trying to defend the statement, finds a fact which was in existence at the time he (or she) made the statement but of which he was previously unaware. In other words, the comments become defensible because the author has subsequently discovered a fact which helps him, rather than because he knew it at the time. To say that this could be an “honest opinion” appears to be absurd.
This aside, we believe that it will often remain difficult to ascertain whether the statement complained of is fact or opinion. One purpose of the new Act is to simplify existing law. In reality however we expect that there will continue to be significant differences of view on what constitutes a statement of ‘fact’ and that which constitutes ‘opinion’.
Jon Oakley is an Associate in the reputation protection team at Michael Simkins LLP.