3. ‘The defence of ‘Honest Opinion’ under s.3 of The Defamation Act 2013 is not robust enough to protect free speech and rights under Article 10 of the European Convention on Human Rights.’ Discuss.

Introduction:

• There is a narrow line between freedom of expression and the right of one’s reputation. To make this line more clear, the Defamation Act 2013 was created. One of the defences was one of ‘Honest Opinion’ which provided that a statement of opinion, based on facts, was one that could be held by an honest person. The connection to the European Convention of Human Rights (ECHR) was that Article 10 provides the right to freedom of expression and information, and the UK courts were then given the task of finding the balance between the two in relation to defamation cases. Although the Defamation Act 2013 has been found to encourage freedom of expression, it does not protect free speech and rights to the same extent that the ECHR does.

P1:

• The aim of the Defamation Act is to provide better protection for free speech.
• The main legal case that underlies the honest opinion defence in this Act was Joseph v Spiller [2010]. The defendants, a management agency, had published comments on its website about the reliability of a musical act, who were the claimants managed by the defendants. When the defendants were sued in defamation by the musical act, they pleaded fair comment. In delivering the leading judgment Lord Phillips stated that the previous test for ‘fair comment’, as it was called before the 2013 Act, was no longer viable and that it had to be simplified. This case became the fundamental case for the section 3 of the 2013 Act as it mainly focused on removing the public interest requirement and thereby also eliminating the need for juries at defamation trials which carried a large price tag. The new test which originated in the Joseph v Spiller case provided a more clear and straightforward test. By simplifying and clarifying the certain elements in the Defamation Act 2013, the defence of honest opinion enables free speech to a greater extent than what the previous Act had allowed.

P2:

• Article 10: ‘this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’
• As Harriet Brown discusses in her article in the Entertainment Law Review, with the new defence of honest opinion many complex issues from the previous are resolved with the implementation of the Defamation Act 2013. There is no longer a requirement that the statement that is being complained of is a matter of public interest. This change is in accordance with the right of Article 10 of the ECHR. This allows statements of opinion that are based on facts existing at the time the opinion was created to not be considered defamatory.  It protects honest opinions more readily when they are based on facts may be either true or false, but the opinion is regardless made on these facts and it is not the responsibility of the defendant to verify the status of the facts.

P3:

• ‘Libel laws exist to protect people’s reputation; it is not surprising that they restrict freedom of expression’.
• In Berkoff v Burchill the defendant had written a film review for The Sunday Times where he called the claimant, an actor starring in the film, “hideously ugly” and later on referred to him as the Frankenstein monster.  It is clear that the statement made by the defendant was an opinion that was based on the film he had seen starring the claimant. The Court of Appeal later on held that this gave the statement made by the defendant gave the impression that the defendant was repulsive and that the statement could put him in a bad light and was therefore defamatory. However, as Millett LJ expressed in his dissenting judgment, determining that such an opinion is defamatory would be wrong as it would be “an unwarranted restriction on free speech” as people must be able to make some fun of one another without fear of litigation. In addition, the right to express one’s opinion that does not create much harm should not be valid claims. This aspect of the honest opinion defence restricts the freedom of expression, and therefore does not align itself with Article 10 of ECHR which rather protects the freedom of speech than one’s reputation.

Conclusion:

• The defence of honest opinion is to some extent protecting free speech, but not to the extent expressed by Article 10 of the European Convention on Human Rights. By removing some of the complexity of honest opinion, it is striving in the right direction to become as robust as the ECHR. However, the Defamation Act 2013 still focuses greatly on one’s reputation, and needs to place a greater focus on the freedom of expression to be as robust as Article 10.