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Defence of honest opinion - the legal principles, by Eugene Duhovnikoff BA/LLB

The Defamation Act 1992, sections 9-10 provide:

9 Honest opinion

· In proceedings for defamation, the defence known before the commencement of this Act as the defence of fair comment shall, after the commencement of this Act, be known as the defence of honest opinion.

 

10 Opinion must be genuine

· (1) In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is the author of the matter containing the opinion shall fail unless the defendant proves that the opinion expressed was the defendant's genuine opinion.

(2) In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,—

 (a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that— 

  •  (i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and 
  •  (ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion:

(b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that—

  • (i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and ·
  • (ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion.

(3) A defence of honest opinion shall not fail because the defendant was motivated by malice.

There are three legal principles to the defence of honest opinion:

  1. The defendant must show that the publication was an expression of opinion rather than a statement of fact. That is a question to be determined by reference to the whole of the publication, rather than specific statements or words;
  2. The facts on which the opinion is based must be shown to be true or not materially different from the truth or must be based on facts generally known at the time of publication. However, even if several facts are relied on, not all need to be proved to be true; one fact that supports the comment may be sufficient;[1]
  3. The defendant’s opinion must be honestly held.[2] When the defendant is not the author of the opinion then- if the author is neither an employee nor agent of the defendant then the defendant must prove that the opinion, in its context and in the circumstances of the publication, did not purport to be his or her opinion. [3] Moreover the defendant should not have a reasonable cause to believe that the opinion was not the author’s genuine opinion.[4]

The defence of honest opinion recognizes the important right that everyone has to hold and express his or her opinion on any matter of interest or concern. In today’s world where social networks made it so much easier to distribute one’s opinion to potentially large numbers of readers throughout the entire world it is particularly important to know the limitations the law has place on this defence.

 

No advice

This article contains general information about legal matters. The information is not advice, and should not be treated as such.

 

Limitation of warranties 

The legal information on this website is provided “as is” without any representations or warranties, express or implied. Reeves Duhovnikoff & Associates Limited makes no representations or warranties in relation to the legal information on this website. Without prejudice to the generality of the foregoing paragraph, Reeves Duhovnikoff & Associates Limited does not warrant that: the legal information on this website will be constantly available, or available at all; or the legal information on this website is complete, true, accurate, up-to-date, or non-misleading.

 

Professional assistance

You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

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[1] Joseph v Spiller [2010] UKSC 53, [2011] 1 AC 852.

[2] Defamation Act 1992, s 10(1).

[3] Section 10(2)(b)(i).

[4] Section 10(2)(b)(ii).

Reeves/Duhovnikoff & Associates Ltd. 2017

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