I. Introduction
Fair comment has long been seen as a central way in which freedom of speech is protected under defamation law. The right to comment under the defence is regularly described as an “essential” or “fundamental” element of free speechFootnote 1 and is understood as “a basic democratic right”.Footnote 2 However, while fair comment is meant to be “an important practical safeguard of freedom of speech”,Footnote 3 it has been strongly criticised for its complexity and technicality.Footnote 4 Indeed, the Supreme Court recently described the defence as “one of the most difficult areas” in defamation law.Footnote 5
Concerns about the defence led to its replacement, in the Defamation Act 2013, by a statutory version called honest opinion. The reform responded to views that this “bulwark of freedom of speech”Footnote 6 was too restrictive, complex, and unpredictable.Footnote 7 The concerns had multiple strands, but an important one involved the requirement to distinguish “comment” from allegations of “fact”. This has been called “the most important, and most difficult, distinction in the entire area of libel law”.Footnote 8 The distinction can certainly be “tortuous”Footnote 9 and reform campaigners argued courts were “too analytical” in distinguishing fact and comment, calling for a “broader and more relaxed definition” of comment.Footnote 10 For the law to deal better with the scope of “comment” would be of major benefit to law, litigation, and the public interest in reasoned debate.Footnote 11
According to the Explanatory Notes, the defence of honest opinion in s. 3 of the Defamation Act 2013 is intended to reflect generally the common law defence, while “simplifying and clarifying” its elements.Footnote 12 However, some of the new defence's features can be seen as departing substantially from its predecessor.Footnote 13 Under the common law in England and Wales, fair comment had the following elements.Footnote 14 It applied to expressions of comment made on matters of public interest,Footnote 15 so long as the comment was based on proper material (either true or privileged) that was sufficiently indicated,Footnote 16 and the comment was one an honest person could have made in light of those facts.Footnote 17 The defence was defeated if claimants proved malice. Section 3 changes this formulation. For example, comment need no longer be on a matter of public interest, meaning comment on entirely private matters may fall within the defence. The defence also changes how defamatory comments can be based on prior privileged statements.Footnote 18 In addition, the statutory defence requires only that an honest person could have held the opinion on any facts that existed when the comment was made, whether those facts were known to the commentator or not.Footnote 19 This extends the defence's availability significantlyFootnote 20 and may have “profound and far-reaching ramifications” depending on judicial interpretation.Footnote 21
Although making such changes, the 2013 Act does not address the concept of “comment” or “opinion” as it is now termed. The Act itself is completely silent on delineating the bounds of comment; the Explanatory Notes state simply that the requirement in s. 3(2) for the statement to be “a statement of opinion” is “intended to reflect the current law”.Footnote 22 Although the nomenclature has changed from “comment” to “opinion”, opinion is explicitly said to mirror the common law understanding of comment.Footnote 23 This means the approach adopted under common law to the limits of comment should define the scope of the provision.Footnote 24
The lack of attention to the scope of comment is surprising not just because of concerns about the defence raised during reform, but also because of recent legal uncertainty. At times, a narrower understanding of comment has been suggested by English courts in sharp contrast with the approach in some comparable jurisdictions, and contrary to long-standing judicial statements about the defence's vital role in protecting free speech. At common law, comment has traditionally been given a wide reading, including not only expressions of opinion, but also factual conclusions or inferences arrived at by the commentator on the basis of other facts.Footnote 25 This understanding follows from a focus on the reasoning of the commentator as it appears from the publication rather than whether the statement is opinion or fact as such.Footnote 26 The Defamation Act 2013 appears to continue this approach; it is explicitly recognised in the Explanatory Notes that opinion – like comment at common law – includes factual inferences: “As an inference of fact is a form of opinion, this would be encompassed by the defence.”Footnote 27 Despite this statement, however, it went unaddressed that case law may have limited the extent to which fair comment protected factual inferences. Over the past decade, some judgments – but not all – have shifted the focus in defining comment away from the reasoning of the author towards the non-verifiability of the statement in question. Here, we explore and critique any tendency to narrow the defence in this way. The latest edition of Gatley on Libel and Slander observes the treatment of verifiable inferences is “ripe for judicial determination” and continues: “If the ability of an audience to recognise words as comment is key, then it is not obvious why the verifiability or otherwise of the inference should be important.”Footnote 28 We agree, and here examine historical and contemporary resources available to courts in determining the treatment of factual inferences.
While our focus is on one aspect of this defamation defence, it is one with serious ramifications for how speech is, or is not, protected. Protecting factual inferences clearly expands what a commentator legally can say. It also reflects common forms of reasoning and public speech, which is why the issue has importance in defamation law overall. For example, someone could know events A and B have occurred and therefore conclude that state C exists. One instance would be where an official investigation into wrongdoing and a first-hand witness both incriminate a particular person in the activity in question. Someone who knows both those things could well conclude the person has engaged in wrongdoing. It would be a factual inference, and might be presented as such on the basis of stated true facts. A statement conveying the underlying facts and the conclusion drawn from them may not be in the form of an opinion as classically understood (such as artistic criticism), but the conclusion should be recognised as coming within the scope of comment. The factual inference would be a form of public reason.
There is a final introductory point to note. We use the term “comment” when considering the defences' breadth – whether fair comment at common law or honest opinion under the 2013 Act. Given the statutory defence is labelled honest opinion, it is perhaps ironic that using the term comment is likely to minimise confusion between “classic” opinions, facts that are presented as inferences, and facts that are not presented as inferences but as “bare” facts. This approach to terminology, however, is consistent with the Explanatory Notes stating the scope of opinion is intended to mirror comment at common law and include factual inferences. While lawyers may “need to give up” using the label “fair comment” in naming the defence,Footnote 29 we suggest it is very important that the concept of comment and its breadth are not forgotten. Otherwise, the defence may be substantially narrowed, contrary to the intention of the statutory reforms.
II. The Protection of Factual Inferences as Comment
A. Definition of Comment at Common Law
For the purposes of analysis, and appreciating the possible scope of “comment”, imagine three types of publication. The first type of publication is a classic form of statement protected by fair comment, such as an opinion about a public work; for example, a piece of literary criticism.Footnote 30 Like other subjective evaluations, the opinion cannot be proven true or false and clearly comes within the scope of comment.Footnote 31 In contrast, a statement of fact is not subjective: a fact is a particular state of affairs that either exists or does not.Footnote 32 An understanding that fair comment or honest opinion protects opinion but not facts would suggest this first type of publication comes within the ambit of comment. However, it might also suggest that only opinions come within the defence. As explained below, that is incorrect.
The second and third types of publication are both factual inferences – statements recognised by recipients as inferences drawn from other material. The second type is a factual inference described in defamation law as unverifiable. An example is an allegation about the motives with which a person acted. While in criminal law, motives are not merely matters of judgment and are subject to proof, some English judgments have described these types of statement as being “analogous to value judgments” – echoing language of the European Court of Human Rights – and in that sense unverifiable.Footnote 33 As such, this second type of publication also lies within the scope of fair comment. While noting the awkwardness of the label “unverifiable fact”, we describe this second type of publication as an unverifiable factual inference.
The third type of publication is also recognised by recipients as an inference drawn from other material, but is said to be a statement of verifiable fact. It does not concern something like motive and is more clearly susceptible to proof. We describe this as a verifiable factual inference. Traditionally, this type of factual inference came within fair comment. Language used in some contemporary cases could suggest this is no longer true. On the contrary, we argue that the law should continue to allow such factual inferences to be defended as comment, consistent with the defence's history and its long-standing rationale of protecting the “right to comment”Footnote 34 as a fundamental aspect of free speech.
So how is the scope of comment defined in law? In a classic statement in Clarke v Norton, Cussen J. said comment is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, or observation”.Footnote 35 Matters of subjective evaluation, the first type of publication outlined above, obviously fall within this definition.Footnote 36 However, the approach of Cussen J. could clearly include all three types of publication. Historically, this was the case. Well before Clarke v Norton, courts accepted the defence could include factual inferences. The principle is stated in O'Brien v Marquis of Salisbury: “Comment may sometimes consist in the statement of a fact, and may be held to be a comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by” the speaker.Footnote 37
Comment could encompass a clear allegation of fact, provided ordinary reasonable recipients would understand the allegation as an inference rather than a fact stated independently from a process of deduction or inference. In Cole v The Operative Plasterers Federation of Australia (NSW) Branch, Ferguson J. said “a most explicit allegation of fact may be treated as comment if it would be understood by the reader or hearers, not as an independent imputation, but as an inference from other stated facts”.Footnote 38 On this approach, the important factor in characterising a statement as comment is the author's process of reasoning as it appears from the publication, rather than whether the statement is opinion or fact or can be verified or not.
For a statement to be comment, the commentator's reasoning must be presented as having a factual basis.Footnote 39 At common law, only allegations presented as criticism or evaluation of, or observation, inference, or conclusion based on, underlying facts will qualify as comment.Footnote 40 Where criticism relates to a public work, it will usually only be necessary to identify the work.Footnote 41 However, where comment is in the nature of an inference of fact,Footnote 42 the factual basis may need to be more clearly indicated or set out in order for the conclusion to be understood by ordinary recipients as comment. What case law makes clear is that neither a bare opinion as to conduct nor a bare allegation of fact can constitute comment.Footnote 43 It is to these bare allegations that courts refer when distinguishing “fact” from “opinion” and not, as is sometimes assumed, that all allegations of verifiable fact fall outside the scope of comment. For example, in Kemsley v Foot, Lord Porter quoted from Odgers on Libel and Slander and stated:
If the defendant accurately states what some public man has really done, and then asserts that “such conduct is disgraceful”, this is merely the expression of his opinion, his comment on the plaintiff's conduct. [The same result applies] if without setting it out, he identifies the conduct on which he comments by a clear reference … . But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth.Footnote 44
The words “allegation of fact” at the end of this passage refer to an allegation that is not a factual inference. That sort of bare factual statement cannot be defended by fair comment.
B. History of Protecting Factual Inferences as Comment
Protecting factual inferences as comment was recognised early in the defence's history, as Paul Mitchell has examined.Footnote 45 Initially seen as a way of rebutting the presumption of malice, and therefore as a subset of qualified privilege, fair comment appears to have been first recognised in Dibdin v Swan and Bostock Footnote 46 in 1793 and then refined in a series of cases over 70 years.
The 1833 decision of Cooper v Lawson recognises a factual inference as comment.Footnote 47 In the case, a newspaper alleged a tailor had falsely sworn he was qualified to be a surety in an election. The newspaper asked why the tailor, being unconnected with the electoral borough, “should take so much trouble and incur such an exposure of his embarrassment” and concluded that “There can be but one answer to these very natural and reasonable queries; he is hired for the occasion”. Alleging the tailor had been hired was clearly an allegation of fact inferred from other stated facts. That such an allegation was capable of being protected by fair comment is clear from this statement of Lord Denman C.J.: “Now a comment may be the mere shadow of the previous imputation; but, if it infers a new fact, the defendant must abide by that inference of fact, and the fairness of the comment must be decided upon by a jury.”Footnote 48
Cooper v Lawson illustrates how the early defence was not limited to literary criticism, artistic merit, and the like, but extended to a factual allegation where it was presented as an inference from other facts, provided the factual basis was sufficient.Footnote 49
Into the second half of the nineteenth century, cases continued to treat comment as encompassing factual inferences.Footnote 50 As Mitchell notes, the cases showed that “what identified comment was simply that it was a reaction or a response”.Footnote 51 The reasoning extended to the most clear and serious factual allegations. For example, an allegation that a person acquitted of murder was, in fact, guilty might be protected as comment,Footnote 52 likewise alleging the plaintiff attended a public meeting while intoxicatedFootnote 53 or “surreptitiously and without authority” supplied information to a newspaper.Footnote 54 What mattered was whether the allegations, albeit factual in nature, were inferences reasoned from other facts. This reflected what was seen as the underlying reason for the defence – namely encouraging freedom of expression in the form of commentary based on facts.Footnote 55
Notable cases also arose in the early twentieth century. In Hunt v Star Newspaper Co.,Footnote 56 alleging an electoral returning officer was politically biased could be protected by fair comment. An allegation of bias, despite being factual, could be protected provided it was presented as an inference drawn from other stated facts. The 1907 case of Dakhyl v Labouchere Footnote 57 involved an allegation that a doctor was a “quack”. This was held to be capable of meaning the plaintiff had acted as part of a “medical imposture”Footnote 58 – a factual inference from other stated facts – and it should have gone to the jury on fair comment.
However, since Hunt v Star and Dakhyl v Labouchere, which were reported together, there appears to have been a long period with a dearth of reported English cases dealing expressly with fair comment and factual inferences. Some notable cases mid-century involved what can be characterised as unverifiable factual inference;Footnote 59 however, it seems no cases expressly discuss factual inferences being protectable as comment. No explanation for this absence is evident in the cases; certainly, courts did not overrule the principle. Rather, the question of factual inferences and comment did not appear to arise. A possible reason, at least in relation to verifiable factual inferences, may be the influence of legal authors from the turn of the twentieth century. Mitchell suggests these authors introduced the concept of “verifiability” as a way of distinguishing fact and comment to find an overarching classification system for defamation defences.Footnote 60 That is, unverifiable opinion might be defended as comment, while verifiable fact could be defended by justification or privilege. This academic concern for classification, prompted by the 1863 ruling in Campbell v Spottiswoode Footnote 61 that fair comment was not part of qualified privilege, led to the “novel”Footnote 62 pairing of fair comment and justification by Fisher and Strahan in 1898.Footnote 63 By the early twentieth century, it had become “academic orthodoxy”Footnote 64 that fair comment was a “supplement” to justification: allegations of fact were defended as true; opinions were defended as comment.Footnote 65 What emerged in textbooks was a dichotomous relationship between justification and fair comment, with comment appearing to be synonymous with unverifiable opinion. While neat, this arrangement could not easily be reconciled with the approach of courts that comment could be protected by justification,Footnote 66 while fact could be protected by fair comment.Footnote 67 Nor could it be reconciled with the traditional rationale that fair comment exists to protect a commentator's “right to comment”Footnote 68 and not simply as a counterpart to justification. As Mitchell suggests, the courts appeared largely impervious to the relationship between truth and fair comment invented by textbook writers.Footnote 69 Certainly, courts throughout the twentieth century continued to emphasise “fair comment [as] one of the fundamental rights of free speech and writing”.Footnote 70 However, it is conceivable that the absence of cases explicitly treating factual inferences as comment along with textbooks' views may have influenced the legal approach over time.
In any event, equivalent effects were not experienced in many other common law jurisdictions, such as Australia,Footnote 71 South Africa,Footnote 72 and New Zealand.Footnote 73 Courts there continued – and continue – to emphasise that inferences of fact fall within comment's scope. For example, in Channel Seven Adelaide v Manock, the most recent High Court of Australia decision on fair comment, it was stated that “comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts”.Footnote 74 While the majority held that publicity for a television current affairs programme that the plaintiff “kept evidence to himself” could not be characterised as comment, it is clear that factual allegations could have been protected under comment if presented as “deductions from other facts”.Footnote 75 Kirby J., in dissent, agreed with this legal formulation but found many of the relevant statements were “conclusions or criticisms, based on foreshadowed facts” which arguably came within the concept of “comment”.Footnote 76 In other Australian cases, inferences of misappropriating fundsFootnote 77 and criminality,Footnote 78 including allegations as serious as murder,Footnote 79 and allegations of breach of judicial dutyFootnote 80 have been held capable of falling within comment defences because they could be understood as inferences, evaluations, or judgments “derived or inferred from the stated facts”.Footnote 81
Even in Singapore, a jurisdiction not renowned for expansive treatment of defamation defences, factual inferences can come within the defence. This was evident early in the twentieth century,Footnote 82 and has continued much more recently. In 1989, the Privy Council agreed with the trial judge in Jeyaretnam v Goh Chok Tong Footnote 83 that alleging a politician had engineered a mass exodus from a public meeting, in order to demonstrate his own political importance, could be protected by comment as a conclusion or inference drawn from facts set out in the publication.
Importantly, in all these jurisdictions, verifiability is not determinative of whether the statement is comment. While statements which are not objectively verifiable may be more likely to be classified as comment,Footnote 84 statements will not be excluded from the defence merely because they are verifiable.
III. Excluding Verifiable Factual Inferences?
A. Case Law Emergence of “Verifiability”
In the 2004 case of Hamilton v Clifford,Footnote 85 almost a century after Dakhyl v Labouchere, a different approach could be discerned. It was specifically held, apparently for the first time in England, that verifiable factual inferences are outside the scope of fair comment. In that case, publicist Max Clifford sought to defend an allegation to the media that the husband-and-wife Hamiltons had participated in raping another woman.Footnote 86 Clifford, after contact with the complainant, made statements to the effect that the police investigation and the Hamiltons' arrest gave rise to reasonable grounds to suspect their involvement. The Hamiltons sued and Eady J. struck out fair comment on the basis that Clifford's remarks amounted to a factual allegation and not comment. In doing so, Eady J. said: “For reasons of policy … one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Depending on the meaning of the particular words complained of, a defendant has … to justify the primary factual allegation … . Fair comment does not provide an escape route in such circumstances.”Footnote 87 The defendant's application to appeal was dismissed with reasons, with Pill L.J. noting the detailed consideration of the issue by Eady J.Footnote 88
It is worth considering a little further the analysis in question. The allegations were all held by Eady J. to be factual. They were in effect bare factual allegations because they were not presented as deductions or inferences. While Clifford was held to have inferred the Hamiltons' guilt from the complainant's statement that she had been raped, his publications did not present it in that manner. This is why Eady J. noted concerns with the repetition rule, which limits the meanings that can be found where defendants simply repeat or adopt another's defamatory statement.Footnote 89 However, it is worth underlining that adopting or repeating another's statement is not presenting a comment on indicated facts. For some of Clifford's statements – such as “I totally believe what the young lady told me”Footnote 90 – the finding was they were not presented as inferences of fact; instead they directly conveyed a meaning at the level of guilt. There was no viable defence for that meaning,Footnote 91 certainly not fair comment. Other statements by Clifford were held to be capable of conveying the lesser meaning of reasonable grounds to suspect guilt.Footnote 92 Eady J. first considered this meaning in terms of justification, and none of the particulars of justification was capable of supporting the meaning. Thus, the justification defence was struck out. Only then was fair comment considered. Given the conclusions on meaning and justification, it is not surprising that Eady J. began by agreeing with the claimant's counsel that the relevant statements were facts, not comment. He then said the verifiability of the statements here meant they could not come within the comment defence. On this approach, it would seem alleging that there are reasonable grounds for suspicion of guilt is the type of allegation which is amenable to proof and verifiable and therefore cannot constitute comment. But it is worth repeating that the statements in question were not presented as deductions from indicated and true facts.
It appears that contemporary reference to “verifiability” in relation to comment began with Eady J. It is not evident in English fair comment judgments prior to this centuryFootnote 93 and it was not an issue in the Court of Appeal's 2001 decision in Branson v Bower.Footnote 94 Instead, that decision affirmed the proposition that factual inferences can be protected as comment under the approach set out in Clarke v Norton.Footnote 95 In Branson v Bower, an allegation that Branson was motivated by revenge, vanity, and self-promotion in bidding to run a national lottery was held to be comment. Latham L.J. said the statements about motives were expressed “in a way which would leave the reader in no doubt that they were inferences drawn by [Bower] from the facts set out in the article”.Footnote 96 They were factual inferences that could come within the defence. The Court of Appeal made no suggestion that only factual inferences of motive could constitute comment or that only unverifiable factual inferences could be comment. At first instance in Branson v Bower, Eady J. had also ruled the allegations to be comment.Footnote 97 He had noted the allegations were inferences about motive, but did not explicitly state that only such value judgments could be protected as comment. Indeed, his focus on motive appeared to follow from argument of counsel, as much as from the publication itself.Footnote 98 The term “verifiable” was not used. In finding these factual inferences to be comment, Eady J. stated:
[T]he boundary between fair comment and justification sometimes becomes a little fuzzy when the court has to address defamatory words couched in the form of the author's inferences of fact from the material set out or referred to … . English law recognises … that the validity of inferences can be a matter of opinion and thus susceptible to a defence of fair comment. Thus, if a journalist makes inferences as to someone's motives, that may be treated as the expression of an opinion even though the inference drawn may be to the effect that there exists a certain state of affairs (including a state of mind). I see no obvious inconsistency between these important principles of English law and what was said so recently in [the European Court of Human Rights] … .
It was clear that the court in Strasbourg was addressing the wording of particular statements in their context, and that they were intended to convey the applicants' own opinions. It was also said that they were thus akin to value judgments. I do not need to go so far as to draw any such analogy here.Footnote 99
In Hamilton v Clifford, Eady J. went a little further, stating that allegations as to motive, albeit on one view factual, are treated as comment “because they are generally unverifiable and perceived by readers to be in their nature subjective”.Footnote 100 They are factual inferences “analogous” to value judgments.Footnote 101 He concluded there is “a fundamental difference” between alleging that Branson had acted with improper motives and the verifiable allegation that the Hamiltons had participated in rape.Footnote 102 However, the more significant difference may have been that, in Hamilton v Clifford, the publications were not presented as deductions or inferences. Unverifiable allegations about motive may well be a common example of factual inferences that can amount to comment, but they have not been the sole type of factual inference within comment. The distinction between the cases could better be seen as this: in Branson v Bower, a comment was made on indicated facts while, in Hamilton v Clifford, the publications amounted to bare allegations of fact. The latter could never be comment, whatever approach was taken to verifiability.
In a number of decisions, Eady J. used the language of verifiability. However, often the issue was not determinative, as four examples illustrate. First, in an interlocutory judgment in Keays v Guardian Newspapers,Footnote 103 Eady J. ruled particular allegations concerning the claimant's state of mind were comment. The claimant acknowledged that allegations about state of mind could be comment but argued they were not necessarily comment here, so the issue should be left to a jury. The judge agreed with the first point – allegations about state of mind could be comment – but disagreed with the second. In this instance, the allegations could only be comment. The inferences were not presented as new and independent facts, but as inferences on indicated facts. Eady J. stated:
Where a journalist draws such an inference about a state of mind which she cannot, in the nature of things, verify, then it will generally be clear to any reasonable reader that it does not purport to be an objective statement of fact capable of verification. It was clear in this case, and anyone who was to classify the defamatory imputations as factual, and as requiring objective verification, would indeed be perverse.Footnote 104
Notable for present purposes is that, while the language of verifiability and objectivity was used, it was not crucial to the decision. It was not a dispute about whether the allegations concerned motives, or whether they were verifiable. Both parties agreed the allegations could amount to comment.
Second, the concept of verifiability was mentioned in passing by Eady J. in his June 2001 judgment in Branson v Bower when referring to his own earlier ruling in the dispute, discussed above. Eady J. stated that he had earlier ruled the allegations about motives were comment not fact, and continued: “A defendant should not be required to justify value judgments or opinions expressed on matters of public interest as though they were matters of objectively verifiable fact.”Footnote 105 As in Keays, the language of verifiability was used but not as the exclusive test of what could be comment.
Third, Eady J. granted summary judgment in Campbell v Safra based on a lack of publication by the defendant.Footnote 106 He also considered various subsidiary arguments for summary judgment, all of which he rejected. One concerned fair comment. As to whether the allegations were comment or not, Eady J. stated:
The allegation or inference that the book was based on Mrs Safra's life is, at least arguably, a verifiable matter of fact. The state of the Claimant's knowledge at the time she conceived and/or wrote the book, and her research methods, are issues on which it should be possible to come to a conclusion …. Those are matters which in this respect are potentially distinguishable from a person's motives, which are more susceptible to subjective interpretation.Footnote 107
Fourth, Pena v Tameside Hospital NHS concerned publications which were held to attribute motive to the claimant. Eady J. commented that such attributions “can often, depending on context, be properly classified as comment” as they depend on inference. In this instance, it would be clear to recipients of the publications that they amounted to comments on the claimant's conduct “rather than making verifiable assertions of fact”.Footnote 108 Again, it is notable the inferences of fact were unverifiable and were comment.
B. Contrasting First Instance and Appellate Decisions: BCA v Singh and Joseph v Spiller
Beyond the above examples, the concept of verifiability was used more directly by Eady J. in the first instance decision in British Chiropractic Association v Singh.Footnote 109 There, he dealt with two questions agreed by the parties, namely the publication's meaning and whether the words complained of were comment.Footnote 110 The words at issue in Singh were: “The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”Footnote 111
Two defamatory imputations were found to be conveyed. They concerned promoting the efficacy of treatments without a jot of evidence and being happy to promote bogus treatments.Footnote 112 Eady J. classified both as fact rather than comment. Endorsing counsel's reference to his judgment in Hamilton v Clifford, he stated that “one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification”.Footnote 113 It is interesting to note that Eady J. equated the idea of “bogus treatments” to “quack remedies”. Recalling the discussion of “quack” in the House of Lords in Dakhyl v Labouchere Footnote 114 – an allegation that a doctor was a “quack” should have gone to the jury because it could have been comment – might have led to greater caution before finding the meanings in Singh were outside the bounds of comment.
As has been widely discussed, the first instance finding in Singh was overturned.Footnote 115 The Court of Appeal rejected the statements' characterisation as verifiable fact.Footnote 116 Instead, the statements were understood to relate to “an area of epidemiology in which the relationship of primary fact to secondary fact, and both to permissible inference, is heavily and legitimately contested”.Footnote 117 Thus, they were matters of comment. The Court of Appeal appeared to adopt a broad approach to the concept of commentFootnote 118 and was sympathetic to defence arguments that challenged the antithetical treatment of fact and comment.Footnote 119 However, while recognising the force in criticism of verifiability as an exclusive test of comment, the Court of Appeal primarily disagreed with the first instance finding that the statements in question were verifiable. Rather, the article concerned an area of epidemiology that necessarily involved matters of opinion.
Whatever the approach in Singh, the subsequent Supreme Court decision in Joseph v Spiller may be thought to provide support for a distinction based on verifiability.Footnote 120 However, even there the point is obiter. In the Supreme Court, the decisive point was that the facts on which comment is based must be sufficiently indicated or referred to in the publication. At first instance, Eady J. had ruled out fair comment for multiple reasons, including that the allegations were matters of verifiable fact. He stated:
It is necessary to remember, in this context, that the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable …
Here, the real sting of the libel … would appear to be the allegations that the claimants take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings. It seems to me that they are factual in character rather than the expression of opinions.Footnote 121
The Court of Appeal disagreed and held the material was definitely comment, because the publication presented inferences in the form of value judgments drawn from facts.Footnote 122 This finding was not challenged in the Supreme Court.Footnote 123
While the Supreme Court was concerned with the factual basis element of the defence, it took the opportunity to examine all the requirements of the defence, which it renamed honest comment.Footnote 124 Lord Phillips considered an argument raised by counsel for intervening media organisations that the defence should protect verifiable factual inferences.Footnote 125 In response, he questioned the correctness of Jeyaretnam v Goh Chok Tong in the Privy Council, outlined above,Footnote 126 and gave tacit approval to the decisions of Eady J. in Hamilton v Clifford and Singh.Footnote 127 He stated: “Jurisprudence both in this jurisdiction and at Strasbourg … has held that allegations of motive, which [are] inherently incapable of verification, can constitute comment.”Footnote 128 Lord Phillips continued that “Some decisions have gone further and treated allegations of verifiable fact as comment”Footnote 129 and concluded that “These are difficult questions. Some may have to be resolved judicially, but the whole area merits consideration by the Law Commission, or an expert committee”.Footnote 130 Lord Phillips also raised several concerns about protecting verifiable facts as comment, to which we return below.
However, at this stage, it is useful to point out that, both before and after Joseph v Spiller, Tugendhat J. has taken an approach consistent with the historical position. In two decisions, Tugendhat J. accepted that verifiable factual inferences can be protected as comment. This is worth emphasis because, to date, the statements have not received the attention they warrant in leading texts.Footnote 131 In Rath v Guardian News and Media in 2008,Footnote 132 Tugendhat J. rejected an application for summary judgment against a fair comment defence. He stated:
[T]he Defendants have a real prospect of persuading the court that the statement (that the Claimant has contributed to letting people die unnecessarily) is something which the reasonable reader can recognise as comment in the sense that that statement is, or can reasonably be inferred to be, a deduction, inference, conclusion, criticism, remark, or observation. Causation of death is often a complicated matter. There is a real prospect of the Defendants persuading the court that reasonable readers would appreciate that the Defendants cannot be understood as stating what has caused, or contributed to, the deaths, otherwise than as an inference.Footnote 133
More recently in the 2011 decision in Cook v Telegraph Media Group,Footnote 134 Tugendhat J. directly addressed the inclusion of verifiable factual inference as comment. He held alleging that an M.P. was low “value-for-money” and that his expense claim for reimbursement of £5 was “embarrassing” were both comment. On the basis of written argument from counsel referring to authorities that support such inclusion of factual inferences, and after acknowledging concerns expressed by Lord Phillips in Joseph v Spiller, Tugendhat J. stated:
I accept that if it is clear that the imputation in question is an inference, then it will be a comment, whether or not it is otherwise verifiable. But the fact that an imputation is objectively verifiable is a factor to be taken into consideration in deciding whether the defendant has made clear that it is an inference and so a comment.Footnote 135
We believe these two sentences offer the best approach to understanding factual inferences in fair comment and honest opinion. As Tugendhat J. found, such an approach is open on the case law. In addition, it is consistent with the history and long-standing aims of the defence in providing robust protection for freedom-of-speech interests.
IV. Why Verifiability?
While these recent judgments of Tugendhat J. include verifiable inferences of fact within the scope of comment, other twenty-first-century English decisions discussed above appear to have proceeded on an unexpressed assumption that allegations of verifiable fact could never receive protection under the defence. The lack of appreciation of the historical position is perhaps understandable given the long absence of relevant judgments and the approach of texts. But this does not explain the sudden wave of cases where verifiability has been raised. In this section, we consider the historical influences on the emergence of verifiability and then explore some arguments that might be made in support of such an approach, including points raised by Lord Phillips. We argue each of these influences and arguments fail to justify the exclusion of verifiable factual inferences from the scope of comment.
A. Influences from Europe?
The most likely explanation for the emergence of verifiability in determining what is comment appears to be influence from the European Court of Human Rights and its use of the concept of value judgments in cases under Article 10 of the European Convention on Human Rights. In the landmark decision Lingens v Austria,Footnote 136 the European Court emphasised the distinction between factual allegations and value judgments and stated that “the existence of facts can be demonstrated, whereas the truth of a value judgment is not susceptible of proof”.Footnote 137 As such, requiring defendants to prove the truth of value judgments would constitute an interference with Article 10. Following the introduction of the Human Rights Act, the language of verifiability gained currency in English defamation cases,Footnote 138 especially in some judgments of Eady J. as outlined above.
It is not that verifiability is irrelevant; it is just that unverifiable factual inferences have not been seen as the only type of factual inferences within comment. It is clear that, under Article 10, verifiability must be a relevant factor in deciding whether defences other than truth should be available to defendants. However, there are at least three related points to note about the European decisions. First, the key concern is to prevent defendants' being tied to one defence, such as justification, and being denied the possibility of using others. Second, the decisions do not concern when defendants cannot use a comment defence. The requirement under Article 10 that unverifiable value judgments be included within the scope of comment does not of itself require the inverse, namely that verifiable allegations of fact are automatically excluded from comment defences. Article 10 does not require the concept of a value judgment to be treated as an exhaustive definition of comment in domestic law. Third, the European Court has been expansive in interpreting when allegations will be characterised as value judgments, especially where political speech is concerned or allegations are levelled at politicians.Footnote 139 Indeed, some allegations held to be value judgments by the European Court are more easily viewed as verifiable allegations of fact, such as alleging a politician was a “closet Nazi”.Footnote 140 Similarly, alleging a former government minister had “become rich off the misery of others” was a value judgment with a sufficient factual basis.Footnote 141 The European Court does not appear to have used the language of factual inference, but the breadth of its approach to value judgments resembles and is not inconsistent with this aspect of the traditional common law defence.
The closest the European Court has come to the language of factual inference is probably its decision in Ungváry v Hungary.Footnote 142 The case related to a historian's publications about actions of “official contacts” of state security forces under a totalitarian regime. For the majority, allegations that contacts had some freedom in how they cooperated with, or how their actions could assist, security forces were matters of “fact-related value judgment” and should have been defensible without requiring truth to be proven.Footnote 143 This appears to be the only use of the phrase “fact-related value judgment” in the court. The court in effect included such a factual inference within the concept of value judgment.
B. Emergence of a Public Interest Defence
Given that excluding verifiable factual inferences from the scope of comment departs from earlier law and does not appear justified by Article 10, it is appropriate to consider other possible reasons. One may be thought to lie in the emergence of the Reynolds defamation defence, now replaced by the “public interest” defence under s. 4 of the Defamation Act 2013. Reynolds v Times Newspapers Footnote 144 recognised an expanded form of duty-interest qualified privilegeFootnote 145 to protect publication of allegations in the public interest where publishers acted “responsibly”. The apparent subsequent exclusion of verifiable factual inferences from fair comment may have been influenced by an assumption that such allegations would now be dealt with under Reynolds.
Such an explanation, however, is doubtful; certainly, there is no indication in the cases that the potential availability of Reynolds sits behind a narrower scope for comment. Indeed, the reluctance with which judges applied Reynolds – at least until relatively recentlyFootnote 146 – tends against any suggestion of this as an explanation. But, even if judges have been influenced in this way, there are cogent reasons against the approach. First, expanding one defence does not of itself justify narrowing another, as it is clear that more than one defence can apply to the same allegation. Indeed, it has long been recognised that both fair comment and justification can be used to defend comment. We would expect the same approach to apply to Reynolds and comment. Equally, Reynolds and justification can both be argued should a defendant wish to do so. Second, given that Reynolds was recognised as a way of alleviating the chilling effect of existing defamation law,Footnote 147 including justification and fair comment, it would be somewhat counter-intuitive to use it to narrow those principles further. Third, Reynolds and fair comment have different foundations in terms of why they protect speech. Reynolds is concerned with conduct in investigation – that is, whether publishers acted responsibly vis-à-vis the truth of what was published.Footnote 148 Comment, on the other hand, is concerned with what could be called conduct in reasoning or the protection of reasoned debate. These different bases suggest it would be inappropriate to limit one defence in light of the other and certainly unfortunate if aspects of protecting comment were shifted to a differently focused, and to date much more burdensome, public interest defence.
C. Lord Phillips's Objections: Risk of Prejudiced Factual Inferences and Severity of Harm
Lord Phillips in Joseph v Spiller raised different possible objections to protecting verifiable factual inference as comment. Two are explored here.Footnote 149 The first is the concern that including such allegations within comment's scope may allow “prejudiced commentators … to draw honest inferences of fact, such as that a man charged with fraud is guilty of fraud”.Footnote 150 The second is that “allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts”.Footnote 151 Here, Lord Phillips is using “comments” as equivalent to unverifiable value judgments. Each of these ideas is considered below; neither appears convincing.
First, Lord Phillips appears concerned that treating verifiable factual inferences as comment will give prejudiced commentators carte blanche to make unreasonable or objectionable allegations. From a historical perspective, this concern has some support. In Hunt v Star Newspaper Co.,Footnote 152 and earlier cases,Footnote 153 the courts took the view that fair comment would only protect inferences of dishonest or improper motives that were warranted conclusions given the facts on which they were based.Footnote 154 Sometimes, courts used the language of reasonableness or required the allegations be well founded. This was due to now antiquatedFootnote 155 concerns that such allegations made without sufficient foundation would be contrary to public interest in maintaining the “public character of public men”.Footnote 156Hunt drew a distinction between improper motive cases – where this higher test of fairness applied – and cases involving criticism of public works, where the more liberal fairness test of objective honesty applied. The latter test asks whether the comment is one that a person, however prejudiced, exaggerated, or obstinate, might honestly make. It has long since been the view that the latter test applies to all instances of fair comment, including factual inferences as to motive.Footnote 157 Certainly, the Faulks Committee endorsed this approach, seeing no reason to permit an exception to the general rule,Footnote 158 and Eady J. used the test of objective honesty in Branson v Bower, a case involving allegations of improper motive.Footnote 159 Given the wide latitude afforded to the right to comment under common law,Footnote 160 all types of comment meet the fairness standard if, objectively, they “could have been made by an honest person” irrespective of the person's prejudice, exaggeration, or obstinacy.Footnote 161 Importantly, the objective honesty test remains under the 2013 Act, albeit broadened to cover comment based on facts that existed at the time and not just facts known to the commentator.
Given Lord Phillips's concerns over prejudiced comments, it is worth pausing to ask whether requiring reasonableness in the test for fairness is compatible with the European Convention. This arises after recognition by the Strasbourg court that the right to “private life” in Article 8 will be engaged, at least in some cases involving harm to reputation.Footnote 162 As mentioned above, value judgments (broadly interpreted) receive robust protection under Article 10. But such protection – and the proportionality of any interference with commentators' rights under Article 10 – depends on the extent to which value judgments have “sufficient factual basis”.Footnote 163 While the precise meaning of “sufficient” is unclear,Footnote 164 it seems objective honesty will usually be enough, especially where value judgments are made in political discussion or on topics of public interest.Footnote 165 However, one could imagine an argument that, where fair comment uses the objective honesty standard, it constitutes a disproportionate interference with the right to private life under Article 8. The first point to note is that the Grand Chamber in Axel Springer AG v Germany held Article 8 will not be engaged where loss of reputation is the “foreseeable consequence of one's own actions”.Footnote 166 This would appear relevant to at least some comments – such as those published as a foreseeable consequence of the claimant's conduct.
Let's begin with cases where Article 8 and Article 10 interests are genuinely in balance. In such circumstances, the European Court has reiterated there is “little scope” for restrictions on Article 10 for speech at the core of protection – that is, speech concerning politics or matters of public interest.Footnote 167 The court has also reiterated that Article 10 protection is not limited to information and ideas that are favourably received, but extends to those that “offend, shock and disturb”,Footnote 168 which suggests the strength of protection under Article 10 will not lessen where prejudiced, exaggerated, or obstinate comments are expressed. Furthermore, where two or more Convention rights are in direct conflict in this way, member states will have a particularly wide margin of appreciation to determine the balance between them.Footnote 169 On the other hand, it might be more likely that interference with Article 8 is considered disproportionate if comment on matters not in the public interest is protected, where the countervailing Article 10 interest is likely to have less weight.Footnote 170 The common law requirement that the comment be on a matter of public interest meant such a scenario was unlikely to arise.Footnote 171 However, as the public interest requirement has been jettisoned in the statutory defence, the issue is theoretically possible, and it has been questioned whether applying the defence to comment on topics not in the public interest is compatible with Article 8.Footnote 172 The concern arises in relation to the defence as a whole but, given our focus on factual inferences, here we offer just two observations. First, one could imagine a factual inference based on true but not private facts. Given the European Court's statements about true facts not engaging Article 8 in terms of reputation,Footnote 173 it is difficult to see any issue in this situation. Second, one could imagine a factual inference based on true and private facts but where publication of the facts was not in the public interest. For claimants faced with that situation, English law already appears likely to offer a remedy for publication of the facts through the action for misusing private information or the Data Protection Act 1998.Footnote 174 In any event, larger and separate questions remain about how the defence in general – not just in its treatment of factual inferences – will be seen under developing European case law on Article 8. But the focus in future European developments may well be on defamatory factual publications more than publications in the form of comment, if it reflects case law to date.
Quite apart from the Convention, Lord Phillips's first objection notably pertains only to prejudiced inferences of fact; it does not justify excluding unprejudiced inferences of fact from the defence. But, given the defence extends to prejudiced value judgments and, under modern law, unverifiable factual inferences, it is not clear in principle why prejudiced allegations of verifiable fact – when presented as comment – should be treated differently and excluded from the defence. If we start from the proposition that fair comment exists to facilitate honest and reasoned debate, all that should matter is whether ordinary recipients understand the allegation – factual or not, verifiable or not – to be the commentator's view based on facts presented or referred to. The legal focus is on the commentator's reasoning process and prejudiced commentators have long been given wide leeway as part of the defence's protection of free speech. The leeway is not without limits: of perhaps greatest importance here is that factual inferences must be understood by recipients as inferences with the factual basis indicated, at least in general terms, to enable recipients to understand what the comment is about and what led the commentator to make it.Footnote 175 The factual basis must also be true or protected by privilege. Indeed, these limits remain central to the availability of honest opinion under the 2013 Act.Footnote 176
These limits mean that, for factual inferences to receive protection, commentators' reasoning must be apparent to recipients and factual inferences must not be stated as bare facts. As Jaffey has noted, it follows that recipients can more readily assess the reasoning of commentators making factual inferences than value judgments.Footnote 177 The greater transparency of the reasoning means, contrary to Lord Phillips's view, prejudiced factual inferences may well be considered less harmful. Ordinary, reasonable recipients of prejudiced factual inferences will see the reasoning is based on prejudice and will, accordingly, reject the conclusions or, at the least, find them less persuasive. As noted in the most recent Gatley on Libel and Slander: “It might be suggested that prejudiced or unwarranted inferences from supporting facts – when recognisable – are generally appreciated as such, with the ‘fallout’ landing on the speaker rather than his or her subject.”Footnote 178
Consider Lord Phillips's example, where a prejudiced commentator draws the conclusion that a person charged with fraud is guilty of fraud. Consistently with long-standing rules regarding defamatory meaning,Footnote 179 a publication's ordinary reasonable recipient is taken to understand that it does not follow that where a person has merely been charged the person is guilty. While a reasonable inference might be that the police have grounds to suspect guilt, an inference of actual guilt is one only a prejudiced recipient would make based on the mere fact of being charged. Thus, it would be bizarre for a publication which states a person has been charged and sets out an inference of the person's guilt – presented as an inference, not a standalone fact – to be interpreted by the ordinary recipient in the opposite manner. In short, the “fallout” would land on the publisher, not the subject of the publication. This is not to attribute to the ordinary, reasonable recipient any undue degree of attentiveness to the commentator's reasoning. If the underlying facts supporting the comment are set out, at least in general terms, so it is clear the comment is an inference drawn from those facts, there is no reason why ordinary recipients should not be endowed with the same critical faculties that apply for the determination of meaning in the first place.
Turning to Lord Phillips's second objection: courts commonly state that allegations of fact are more harmful than comment, but that concerns bare facts rather than factual inferences presented as comment. However, Lord Phillips's second objection may be different: he appears to suggest that verifiable factual inferences are inherently “far more damaging” than other forms of comment – that is, unverifiable factual inferences and classic value judgments. It is not apparent why this is the case. It cannot be because the inference involves fact; otherwise, there would be grounds for also excluding unverifiable factual inferences from the defence. Rather, for Lord Phillips, any greater harm must be attributed to the verifiability of the factual allegation. But, can the mere fact of verifiability have the capacity to increase an allegation's harm? It is far from clear to us that this is right. If ordinary, reasonable recipients can identify factual allegations as inferences arrived at by commentators through reasoning rather than as stated bare facts, there is no apparent reason why such verifiable factual inferences should be considered any more injurious than other comment. Even if we are wrong and such inferences are more injurious, this does not automatically justify their exclusion from the defence. One might suggest that allegations which can be verified (in theory) should be verified (in practice) before publication is defensible but this is very different from saying that such allegations are more damaging. We would, of course, reject any such argument that verification must be required before publication. That would undermine all defamation defences other than truth. Excluding verifiable factual allegations from comment would appear to contribute to the “chilling effect” of defamation that arises where defendants' only available defence is truth.Footnote 180 In addition, we reiterate the fundamental point that the comment defence exists to facilitate reasoned debate; provided the reasoning process is apparent and allegations are not presented as bare fact, it is difficult to see why verifiability should be determinative.
V. Conclusion
In defining comment, courts conventionally draw a distinction between “fact” and “comment”, with any statement outside the ambit of comment referred to as fact. A tendency has developed for comment to be equated with evaluative judgments and, as a result, statements of fact have sometimes been characterised as the antithesis of comment. Consistent with this tendency, Eady J. on occasion turned to verifiability as the central criterion in excluding certain factual inferences from the defence. We have argued that limiting comment by reference to factual inferences' verifiability is misconceived. It is inconsistent with the historical development of fair comment focusing on the author's reasoning, it is contrary to the defence's goals in robustly protecting freedom-of-speech interests, and it does not appear to be justified by reference to the European Convention. Furthermore, excluding verifiable inferences from the defence does not follow from the emergence of the Reynolds (and now s. 4) defence, and Lord Phillips's doubts in Joseph v Springer about protecting verifiable inferences of fact are not convincing.
Instead, we prefer the approach taken by Tugendhat J. in the cases of Rath and Cook, where it is clear that an imputation is an inference with an indicated factual basis, the inference will be classified as comment, “whether or not it is otherwise verifiable”.Footnote 181 The key question is how the author's process of reasoning appears from the publication. As Tugendhat J. said in Cook, while verifiability will be a factor in judging whether the imputation would be understood as an inference, it will not be determinative. The approach of Tugendhat J. is true to the defence's historical treatment and is consistent with its aim of protecting the right to comment in English law. “Essentially a comment is a reasoning”Footnote 182 and it is that which the defence should protect.
In light of the defence's importance in encouraging free and reasoned debate, Lord Denning in Slim v Daily Telegraph warned that it “must not be whittled down by legal refinements”.Footnote 183 We think that to focus on verifiability rather than the author's reasoning is precisely the sort of “refinement” that warrants the same warning.
