Commentary on Sections Defences Section 7: Defence of honest opinion
51.Section 7 replaces the common law defence of fair comment with a statutory equivalent, known as honest opinion. The section broadly reflects the current law while simplifying and clarifying certain elements, but does not include the current requirement for the opinion to be on a matter of public interest.
52.Subsection (1) sets out the parameters of the defence – subject to limited qualifications, discussed below, it applies only if the defender shows that each one of the conditions set out in subsections (2) to (4) are met.
53.Subsection (2) lays down the first condition, namely that the statement complained of was one of opinion (as opposed to one of fact).
54.Subsection (3) sets out the second condition, namely that the statement complained of must have indicated, either in general or specific terms, the evidence on which it was based.
55.Subsection (4) sets out the third condition, namely that an honest person could have held the opinion conveyed by the statement complained of, on the basis of any part of that evidence. This requirement will be judged with reference to whether the view expressed can be said, objectively, to be sufficiently linked to the evidence underpinning it.
56.Condition 2 (in subsection (3)), reflects the test approved by the Supreme Court in Joseph v Spiller(7) that “the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”. Taken together, condition 2 and condition 3 (in subsection (4)) aim to simplify the law by providing a clear and straightforward test. This is intended to retain the broad principles of the current common law defence as to the necessary basis for the opinion expressed but avoid the complexities which have arisen in case law, in particular over the extent to which the opinion must be based on facts which are sufficiently true and as to the extent to which the statement must explicitly or implicitly indicate the facts on which the opinion is based. These are areas where the common law has become increasingly complicated and technical, and where case law has sometimes struggled to articulate with clarity how the law should apply in particular circumstances.
57.Subsection (5) provides that the defence fails if the pursuer shows that the defender did not genuinely hold the opinion conveyed by the statement.
58.Subsection (6) caters for the situation where the defender published the statement complained of but is not the author of the statement. This may apply, for example, where proceedings are brought against the editor of a newspaper, rather than the journalist who wrote the article containing the statement in question. In this scenario, the defence fails if the pursuer shows that the defender knew, or ought to have known, that the author did not genuinely hold the opinion conveyed by the statement.
59.Subsection (7) provides, for the purposes of subsection (2), that a “statement of opinion” includes a statement which draws an inference of fact. An example of an inference of fact would be a contention that because a person has been charged with a criminal offence, he or she must be guilty of it.
60.Subsection (8) provides, for the purposes of subsections (3) and (4), that “evidence” may take three possible forms. It may take the form of any fact which existed at the time the statement was published; anything presented as a fact in a privileged statement, made available before, or on the same occasion as, the statement complained of; or anything that the defender reasonably believed to be a fact at the time the statement was published.
61.Subsection (9) defines what a “privileged statement” is for the purpose of subsection (8)(b).