Executive summary

• The Defamation Act 2013 came into full force on 1 January 2014.
• The Act reformed defamation law in England and Wales and was designed to strike a balance between the protection of reputation and freedom of expression.
• In a five-part series, we will evaluate the Act’s impact on defamation claims during the past decade and consider the findings in key case law within the context of each provision and the effect of litigating defamation claims.
• In part one, we considered the introduction of the serious harm test.
• In part two, we consider the defences of truth (Section 2 of the Act) and honest opinion (Section 3 of the Act), and how these have succeeded and failed in the past decade of litigation.

PART 2: Truth and Honest opinion

Section 2 – Truth

Section 2 of the Defamation Act 2013 established a “Truth” defence, which consolidated the common law defence of justification into statute. It provides defendants with a ‘complete’ defence to a defamation claim, where the defendant can show the imputation conveyed by the statement complained of is ‘substantially true’. It is not necessary for the defendant to demonstrate that everything they said was true.

The key principles that apply to a Section 2 Defence, as set out in Turley v UNITE the Union & Anor [2019] EWHC 3547 (QB) at [125], are the following:

• A defendant has to establish the “essential” or “substantial truth” of the sting of the defamatory allegation(s).
• Proof of every detail is not required where the relevant fact is not essential to the sting of the defamatory allegation(s).
• When determining whether a defamatory imputation is substantially true, the court will bear in mind the requirement to allow for exaggeration at the margins and also consider proportionality within that context.

Successful cases with a ‘Truth’ defence

Shakeel Begg v BBC

It is valuable to examine notable cases where a Section 2 ‘Truth’ Defence has succeeded. In Shakeel Begg v BBC [2016] EWHC 2688 (QB), the Claimant, the Chief Imam at Lewisham Islamic Centre, issued proceedings complaining about a statement broadcast on the BBC programme Sunday Politics. The statement had referred to him as ‘an extremist speaker who espouses extremist Islamic positions’ and had ‘recently promoted and encouraged religious violence by telling Muslims that violence in support of Islam would constitute a man’s greatest deed’. The BBC accepted the words were defamatory of the Claimant but asserted the statements were substantially true. To support its defence, the BBC relied on nine speeches and statements that it contended were examples of the Claimant espousing Islamic positions. The Court agreed with the BBC regarding six of the nine statements and taken together, the Court held the speeches and statements represented an ‘overwhelming case of justification’ and the BBC’s truth defence succeeded.

Johnny Depp v News Group Newspapers

In Depp II v News Group Newspapers and anor [2020] EWHC 2911 (QB), the Claimant was the American actor, Johnny Depp, who brought proceedings in defamation against the publisher of The Sun newspaper and its former executive editor, Dan Wootton. The claim concerned an article published in The Sun under Mr Wootton’s byline, alleging the Claimant had been violent towards his ex-wife, actor Amber Heard, on several occasions during their relationship. The Claimant’s case argued the article contained defamatory meanings that meant he was guilty of serious domestic violence against his ex-wife, which caused him serious harm, including the loss of roles in two prominent film franchises. The Defendants argued the allegations were true and, in pleading a Section 2 Defence as their only defence, relied on 14 separate incidents to support the allegation the Claimant had been abusive to his ex-wife, who herself gave evidence for the Defendants. After a comprehensive analysis of the evidence, Mr Justice Nicol found the Claimant had proven the necessary element of his claim. However, Nicol J also found that 12 of the 14 incidents of assault were also proven and therefore, satisfied the Judge’s observation about the evidence necessary to meet the standard of proof on the balance of probabilities when serious allegations are in issue. While not all of the allegations of domestic violence by the Claimants towards his ex-wife were proven, Nicol J concluded the Defendants had established that the words complained of, in their natural and ordinary meaning, were substantially true and accordingly, constituted a complete defence to the claim.

The Claimant sought permission to (i) appeal the judgment and (ii) for permission to present further evidence to the Court to support his case. Nicol J refused permission in the first instance and in March 2021, the Court of Appeal dismissed both applications, concluding the appeal had no real prospect of success and there was no other compelling reason for it to be heard. The decision was perhaps even more significant when the Claimant was successful in a subsequent defamation claim in the United States against his ex-wife, where a jury found statements in an Op-Ed by Ms Heard for The Washington Post were false, defamed Mr Depp and were made with actual malice. The latter is a unique legal requirement in US defamation law that does not feature in the law of England and Wales, where malicious falsehood is a separate cause of action to defamation.

Rebekah Vardy v Coleen Rooney

In Vardy v Rooney [2020] EWHC 3156 (QB), the Claimant, Rebekah Vardy, and the Defendant, Coleen Rooney, became embroiled in a dispute after the Defendant published on her social media, the outcome of her own investigation into leaks of her ‘private’ social media posts to The Sun newspaper. The Defendant’s post explained the conclusion of her independent investigation that it was the Claimant’s account, which had been informing The Sun of the content her posts. At trial, the Defendant pleaded defences in truth and public interest.

After trial, Mrs Justice Steyn ruled the Defendant’s truth defence had succeeded. Steyn J ruled the Defendant had proved eight social media posts published on her private social media that were leaked to The Sun had come from the Claimant’s account, where the Claimant’s agent had been used as a conduit for information being passed to The Sun. Steyn J held the Claimant both knew and condoned the leaks and actively engaged in them but also concluded it was appropriate to draw adverse inferences against the Claimant on a finding of destruction and concealment of evidence that would undermine the Claimant’s case.

Cases where the ‘Truth’ defence failed

Anna Turley v UNITE the Union

There have also been occasions where a defendant’s Section 2 ‘Truth’ defence has failed. In Turley v UNITE the Union & Anor [2019] EWHC 3547 (QB), the Claimant, Anna Turley, the-then Labour MP for Redcar, sued Unite the Union and the editor of a blog, The Skwawkbox. She sued for libel in respect of an article published on the blog, which imputed she had been dishonest in seeking to join a community section of the union to voice against the incumbent General Secretary. The Defendant pleaded defences in truth and public interest (which we will cover in Part 3 of our Decade of the Defamation Act series). Following trial, the Court ruled the Claimant had established her defamation claim and rejected the Defendant’s case that the Claimant was dishonest in any way when she submitted her membership application. The Court’s decision  was because of the circumstances in which the Claimant submitted her application to join the union, the contents of the application form which she completed (which did not include eligibility criteria) and her reaction when she was told three  months later that she was not eligible to be in the Community section of Unite – which was to apologise and ask for her membership to be transferred to another section. Accordingly, the Defendants’ Section 2 ‘Truth’ Defence failed. Hamlins acted for the successful Claimant in this case.

Rachel Riley v Laura Murray

In Riley v Murray [2021] EWHC 3437 (QB), the Claimant, Rachel Riley, television presenter best known for the Channel 4 programme Countdown, issued libel proceedings against the Stakeholder Manager for the leader of the Labour Party, at that time, the Rt Hon Jeremy Corbyn MP. The claim concerned a tweet posted by the Defendant and following an earlier tweet by the Claimant, in the aftermath of an attack on Mr Corbyn with an egg. In a trial of preliminary issue, Mr Justice Nicklin determined the Defendant’s tweet contained an allegation of fact about the Claimant and also a comment by the Defendant on the Claimant’s conduct, each of which were defamatory. The Defendant pleaded defences in truth, honest opinion and public interest (the latter two of which are addressed below). Following trial, the Section 2 Defence failed because although Nicklin J found that the tweet was capable of being interpreted in two ways, the tweet had stated as a fact that it had one meaning and it was not an accurate representation of the Claimant’s statement. The Defendant’s other pleaded defences in Honest Opinion and Public Interest also failed. Nicklin J’s decision was upheld on appeal when in 2022, the Court of Appeal confirmed the Judge was entitled to conclude on the applicable legal principles the Defendant’s tweet was not shown to be substantially true.

The importance of conduct in a ‘Truth’ defence

In the various decisions explored above, a Section 2 ‘Truth’ defence has succeeded when deployed by media defendants (e.g. newspaper publishers or news broadcasters). Where a court has found difficulty in finding in favour of a ‘Truth’ defence, is when it has been relied on by an individual or a non-media defendant, especially in the context of a social media publication. This success for media defendants could be due to the training professional journalists receive in reporting allegations of fact. It is the conduct of a claimant which remains highly relevant. In a case where the imputation conveyed by the statement complained of is that a claimant is guilty of specified misconduct, an obvious requirement on the defendant is to prove some specific act(s) (or omission(s)) on the claimant’s part in order for their Section 2 Defence to succeed. Where the imputation against the claimant is something less than guilt, such as grounds for suspicion or for an investigation, it will generally be necessary for the defendant to prove some conduct on the claimant’s part that when objectively regarded, gave rise to the suspicion or for an investigation. Where available and because of the presumption of falsity in defamation law in England and Wales, the Defence remains a key protection for responsible journalists and defendants to expose wrongdoing.

Section 3 – Honest opinion

We next consider the defence of ‘Honest opinion’ in the Defamation Act 2013. Section 3 of the Act abolished the common law defence of fair comment and created the ‘Honest opinion’ defence, which is available to defendants who can meet three conditions:

1. The statement complained of is a statement of opinion.
2. The statement indicated, whether in general or specific terms, the basis of the opinion.
3. The opinion could have been held by an honest person on the basis of

• any fact at the time the statement was published; or
• any detail asserted to be a fact in a privileged statement, which was published prior to the statement complained of. The Court recently confirmed in The Duke of Sussex v Associated Newspapers Limited [2023] EWHC 3120 (KB) that only one fact needs to be proven.

A claimant can defeat a Section 3 Defence even if these conditions are satisfied, if the claimant shows the defendant did not actually hold the relevant opinion. While Section 3 abolished the defence of fair comment, previously established common law principles remain applicable to the statutory defence as the Court confirmed soon after the implementation of the Act, in both Barron v Collins [2015] EWHC 1125 and Butt v Secretary of State for the Home Department [2017] EWHC 2619.

The likelihood of a defendant pleading a Section 2 or Section 3 Defence will depend on whether the defamatory statement complained of is a statement of fact or opinion. The distinction was considered in Barron v Collins, where Mr Justice Warby noted a statement made as an inference will often be an expression of opinion. However, Warby J found it will not always be the case that any statement about a subject, where the facts are not within the personal knowledge of the speaker, will be considered an inference and accordingly, an opinion. The key question which remains is how a statement will register with an ordinary reasonable reader. The nature of the occasion where the statement was made along with the receiving audience are essential to assessing this aspect. Where a dispute arises to whether a statement is fact or opinion, this question will be resolved by the Court in a trial of preliminary issue. We have examined a selection of key cases with a Section 3 ‘Honest Opinion’ defence below.

Cases with a Section 3 ‘Honest Opinion’ defence

Dr Salman Butt v Secretary of State for the Home Department

In Butt v Secretary of State for the Home Department, the Claimant, a British citizen and a practising Muslim, was identified in a press release by the Home Secretary, known as the Prevent duty guidance, concerning government measures to prevent extremists radicalising students on university and college campus. The Defendant’s press release alleged the Claimant is an extremist hate preacher who legitimises terrorism and from whose pernicious and poisonous influence students should be protected. This was the natural and ordinary meaning held by Nicol J in 2017 and upheld by the Court of Appeal in 2019, where the Court also held the allegation as a statement of opinion because the information in the press release was provided by the Extremism Analysis Unit (‘EAU’) and the statement in the press release was presented as the EAU’s assessment or evaluation. In general terms, the basis of the opinion was indicated, namely the views of the Claimant which were in the public domain.

The matter in issue before the Court of Appeal was whether the words complained of constituted fact or opinion. Both Nicol J and the Court of Appeal agreed with the Defendant that a statement that someone is an extremist is a statement of opinion, irrespective of context, but that it was necessarily so in the press release. The view of the Appellate Court was that the statement was presented to the reader as the EAU’s assessment (or evaluation), which was reached by considering the Claimant’s public pronouncements and then an assessment of whether these confirmed to “British Values”. In 2021, the Defendant apologised to the Claimant in a Statement in Open Court and agreed to pay the Claimant substantial damages and costs. The settlement came after the Claimant had learned through the proceedings that his name was included in the press release through an oversight and the government did not intend to allege he was an extremist hate speaker or to name him in the press release.

Tony Greenstein v Campaign against Antisemitism

In Greenstein v Campaign against Antisemitism, the Claimant, Tony Greenstein, who described himself as ‘a well-known political activist with a focus on issues related to anti-racism, anti-fascism and Palestine’ sued the Campaign against Antisemitism (‘CAA’) for libel, misuse of private information and breach of statutory duty under the Data Protection Act, in respect of five articles published on the CAA’s website in 2017 and 2018. The primary allegation was the Claimant was a notorious antisemite.

In the trial of preliminary issues in 2019, the Court held the first article bore four meanings; (a) that the Claimant was antisemitic; (b) that he had lied when he claimed in The Guardian that the International Definition of Antisemitism prevents criticism of Israel; (c) that he had lied to the Charity Commission when he claimed that the CAA was a right-wing political Zionist organisation that is not concerned with fascist groups who were antisemitic Holocaust deniers; and (d) had committed several criminal offences including offences of dishonesty, vandalism and drug possession.

The parties were not in dispute that the imputation of antisemitism was defamatory at common law and the Court held an ordinary reasonable reader of the first article could not fail to understand the allegation the Claimant was antisemitic, was an expression of opinion and that meanings (b) and (c) were also an expression of opinion. The remaining four articles also bore meaning (a) that the Claimant was antisemitic, which the Court held would have also been understood as an express of opinion.  In 2020, Mrs Justice Tipples awarded the Defendant summary judgment in respect of the meaning the Claimant was antisemitic, ruling an honest person could express that opinion based upon the Claimant’s tweets posted before the Defendant published the first article, and the Claimant therefore had no real prospect of succeeding on this issue. The Court made a similar decision in respect of meanings (b) and (c), holding the Claimant had no real prospect of succeeding on either issue. The Court also struck out the Claimant’s malice argument, as it was considered defective and did not plead a proper case that the Defendant’s trustee did not believe that the Claimant was an antisemitic. The Court of Appeal upheld Tipples J’s decision in 2021.

Sir James Dyson v MGN Ltd (Mirror Group Newspapers)

In Dyson v MGN Ltd [2023] EWHC 3092, the Claimant, founder and chief engineer of the Dyson group of companies, brought a libel claim against the publisher of the Daily Mirror, concerning an article published under the headline, “Our government is making young people believe that cheats do prosper“. The Claimant was featured in the article in reference to a comment that school children should follow him as an example if they wanted to succeed and described as “the vacuum cleaner tycoon who championed Vote Leave due to the economic opportunities it would bring British industry before moving his global head office to Singapore”.

In 2022, the natural and ordinary meaning was determined in a trial of preliminary issue as (a) that the Claimant has publicly supported the benefits of Brexit to British industry, yet following Brexit he had moved the global head office of his business to Singapore and (b) by so doing, the Claimant was a ‘hypocrite who had screwed the country’ and who set a poor moral example to young people. (b) was an expression of opinion and was defamatory because the meaning was supplied by the element of hypocrisy, harming the country and the Claimant being a poor moral example. The Defendant pleaded Honest Opinion.

After trial, Mr Justice Jay ruled in favour of the Defendant’s Section 3 Defence and that the claim was an abuse of process. The Section 3 Defence succeeded because the article was based on facts that were substantially true and while the columnist was selective of facts on which he based his opinion, there was no obligation for the selection of such facts to be fair and balanced. The inclusion of contextual facts, including that the Claimant’s centre of operations was already in Asia, might have given a fairer view of the overall position but this was not the test of Section 3. Therefore, the omission of this contextual detail did not falsify or contradict the basic factual allegation. Whether an honest commentator could have held the opinion expressed in the article, Jay J ruled the correct test was whether any person, no matter how “prejudice or obstinate”, could honestly hold the opinion of the Claimant and that opinion could be irrational, stupid, illogical and not based on evidence and yet, still remain an honest comment. Accordingly, it was within the scope of Section 3 for the Defendant to publish a statement that given the Claimant’s status as a leading inventor and entrepreneur, his hypocritical and highly symbolic actions might undermine the confidence of others in the UK and so harm the country. Further, this kind of hypocrisy would not set an individual up as other than a poor moral example to young people. Nicklin J had rejected the Claimant’s case that the meaning included an allegation of dishonesty or cheating. Jay J ruled given that the columnist fell short of accusing the Claimant of dishonesty, the scope for honest comment was very considerable, however wounding and unbalanced.

The value of an ‘honestly’ held opinion

The codification of a fair comment defence has ensured defamatory expressions of opinion are protected where honestly held. It does not matter how offensive the opinion is so long as the statement complained of was made by an honest person, on the basis of any fact at the time the statement was published, or any detail asserted to be a fact in a privileged statement and published prior to the statement complained of. This preserves any defendant’s right to freedom of expression and has been shown to succeed where such opinions are made on public figures or comments that an individual espouses racist views. It is also relevant when commenting that someone holds ‘extremists’ views, particularly in 2024 following the Government’s new definition of the term. It is possible a Section 3 Defence will continue to be utilised regularly following the implementation of this new definition of ‘extremism’.

In the third instalment of our A decade of the Defamation Act 2013 series, we examine Sections 4-7 and consider the Public Interest Defence, Privilege defences and secondary defences.

Hamlins’ Media Disputes department is one of the most successful Reputation Management teams in the UK and widely recognised as an advisor of choice for both public and private figures seeking advice in relation to reputation management and pre-publication complaints in defamation and privacy law. If you would like to find out more about how Hamlins can help you, please get in touch.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.