Types of Defamatory Material
Module 7: Defamation and Reputation
Opinion versus fact
We have addressed factual statements that may be defamatory. However, it is important to differentiate expressions of opinion from factual statements. General Comment No. 34 states that defamation laws, particularly penal defamation laws, “should not be applied with regard to those forms of expression that are not, of their nature, subject to verification,”(1) such as opinions and value judgments. It also notes that “[a]ll forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature.”
To distinguish fact from opinion, the following should be considered:(2)
- Statements of facts: Statements claiming facts need to be proven true by the author or publisher in court, while opinions require a demonstration of a sufficient factual basis.
- Verifiability: Facts are objectively verifiable information, and if challenged as false, the burden lies on the speaker to prove their accuracy. Opinions, on the other hand, are subjective viewpoints based on available information. They cannot be objectively proven as true or false. However, critical opinions should have some basis in reality. The level of factual basis varies with the seriousness of the allegation. Severe claims demand more robust and reliable factual support.
Opinions are generally protected under the defence of “honest comment” or “fair comment,” allowing individuals to express their views on matters of public interest, even if those opinions are strong or biased.(3) However, when statements are presented as factual assertions and are proven false, leading to harm or damage to someone’s reputation, they can be subject to defamation claims.
The requirements for an honest comment defence were outlined by the United Kingdom Supreme Court in Spiller v Joseph (2010) which identified the requirements as follows:(4)
- The comment must be on a matter of public interest.
- The comment must be recognisable as comment, as distinct from an imputation of fact.
- The comment must be based on facts that are true or protected by privilege.
- The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.
- The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.
- The comment must not have been published maliciously.
Case law analysis
In the context of the UK, the Waterson v Lloyd and Carr (2013) case presented a critical examination of where the line between fact and opinion lies within defamation law.(5) In this case, a Member of Parliament (MP) initiated a libel claim against the Eastbourne Liberal Democrats, due to the distribution of two campaign newsletters during the 2010 General Election. These newsletters, designed to resemble local newspapers, labelled the MP as an “Expenses Scandal” MP both in headlines and internal articles. The Eastbourne Liberal Democrats defended their actions by invoking the defence of honest comment, asserting that the statements were expressions of opinion rather than factual allegations.
Two of the judges in the England and Wales Court of Appeal viewed the statements made as expressions of opinion or comment, emphasising that they primarily centred on the MP’s expense claims without expressly insinuating any unlawful behaviour. One dissenting judge argued for a clearer distinction between broader MP expense scandals and the specific facts of the MP’s claims. This dissent underscored the potential impact of language nuances in differentiating between statements of fact and expressions of opinion within defamation cases.
The case highlighted the ongoing challenge in defamation law regarding the demarcation between factual assertions and opinions or comments, particularly in the politically charged arena.
Humour
The ECtHR has held that satire is “a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.”(6)
In the case of Petrina v Romania (2008), the ECtHR found that allegations broadcast on a television programme and in a humorous magazine had violated the subject’s freedom of expression because, although the publication was satirical in nature, the articles themselves had been liable to offend the applicant as they had no factual basis, and because they directly concerned him in his personal rather than professional capacity, resulting in speech that over-stepped the boundaries of reasonableness.(7) In contrast, in Sousa Goucha v Portugal (2004), the Applicant, an openly gay TV host, filed a complaint for defamation and insult after he was described in a television comedy show as “The best Portuguese female TV host.”(8) The ECtHR held that there had been a fair balance between the Applicant’s right to protection of his reputation and the media’s right to freedom of expression and found no violation of the Applicant’s rights.
The matter of Nikowitz and Verlagsgruppe News GmbH v Austria (2007) provides further guidance from the ECtHR on the pertinent characteristics of a satirical article in the context of a defamation suit.
Statements of others
A point of consideration, particularly for journalists, is the extent to which they are liable for the potentially defamatory statements of others since a central part of their work is reporting on the words of others. The ECtHR has found that a journalist is not automatically liable for the opinions stated by others and is not required to “systematically and formally” distance themselves from “the content of a statement that might defame or harm a third party,”(9) provided they have not repeated potentially defamatory statements as their own, endorsed, or agreed with them.
Principle 15 of the Principles on Freedom of Expression and Protection of Reputation notes that “individuals should not face legal responsibility for accurately reporting the statements of others” and “no one should be held accountable under defamation laws for a statement they did not create, edit, or publish, and when they had no knowledge or reason to believe that their actions contributed to spreading a defamatory or otherwise unlawful statement.”(10)
With increased social media use, it is notable that individuals may, however, be responsible for statements made by others if they actively participate in or endorse the publication of defamatory content.
Privileged statements
Privileged statements are those reported from places which are covered by different forms of privilege. For example, statements reported from legislative or judicial proceedings typically have absolute privilege. This means that neither the statement’s author nor the media reporting it can be held liable for defamation. Some other types of statements reported from public meetings, documents, or materials in the public domain may also enjoy qualified privilege.
Absolute privilege grants individuals the clear right to make statements in certain situations, regardless of their truth or intent.(11) However, the same statement by the same person may be protected by absolute privilege in one context and not in another.(12) For instance, a defamatory statement made during testimony at a trial would be absolutely privileged, while the same statement made outside the trial could lead to a successful defamation lawsuit.
Other forms of communication also fall under qualified privilege. This privilege protects those acting in good faith who make statements to fulfil a duty or serve a positive purpose and may apply to other fora such as other legislative bodies and quasi-judicial institutions.(13) Unlike absolute privilege, qualified privilege does not shield individuals if they abuse it.(14)
Case law on privilege
- Keller v Hungary (2006): In declaring the application inadmissible, the ECtHR stated that the public insinuations made against a minister did not benefit from the privilege afforded to parliamentary debate because some of them were made outside of Parliament itself.
- Reynolds v Times Newspapers (1999): the Judicial Committee of the House of Lords in the UK dismissed an appeal in a defamation case, holding that although the defence of qualified privilege is available to the media, there is no generic defence for the communication of political information, and defined what has come to be known as the “Reynolds test.”
- Gordon v The Irish Race Horse Trainers Association (2020): the High Court of Ireland elaborated on the defence of qualified privilege and when it is defeated by express malice.
Whose burden of proof?
A general principle of law is that the burden of proof lies with the person who brings the suit or makes the “claim.” However, with defamation, this principle is generally reversed, and the responsibility lies with the defendant — the person who made the allegedly defamatory statement — to prove that the statement did not damage the claimant’s reputation and would rely on one of the above-mentioned grounds of justification.(15)