Butt v The Secretary of State for the Home Department

Whether a defamatory statement is fact or opinion under section 3(2) of the Defamation Act 2013 depends on how the ordinary reasonable reader would understand it in the context of the publication as a whole. An evaluative characterisation of a person’s publicly expressed views by reference to open-textured values is capable of being opinion, even in a Government press release. The fact that an allegation may be objectively verifiable does not itself prevent it from being defended as honest opinion where it is recognisable as an inference or value judgment.

Dr Salman Butt brought a libel claim concerning a Home Office press release about extremism in universities. He contended that it conveyed that he was an extremist hate speaker who legitimised terrorism and whose influence required protection against.

Nicol J determined preliminary issues in the Queen’s Bench Division: he found that the press release bore substantially that meaning, but that it was a statement of opinion whose basis was indicated in general terms: [2017] EWHC 2619 (QB). Dr Butt appealed the finding that the statement was opinion. The Secretary of State sought permission to appeal the finding on meaning.

The central issue was whether the words, read in their immediate and wider context, would strike the ordinary reasonable reader as fact or opinion for the purposes of section 3(2) of the Defamation Act 2013.

1. Appeal dismissed. The court upheld Nicol J’s determination that the words were a statement of opinion. It also refused the Secretary of State permission to appeal against the meaning found below.

2. Meaning is the single meaning conveyed to the ordinary reasonable reader, who reads the publication as a whole. The court applied the approach affirmed in Stocker v Stocker [2019] UKSC 17. The reader must not isolate the paragraph naming the claimant where the wider publication links him to descriptions of hate speakers, extremists and pernicious ideas. Nicol J’s meaning was within the range of reasonably available meanings, and was unassailable on appeal.

3. For the first condition of section 3, the question is whether the statement is discernibly comment to the ordinary reasonable reader. Comment includes an evaluative deduction, inference, conclusion, criticism or judgment. It may include an inference of fact; objective verifiability is not decisive. The subject matter, nature of the allegation and context are material to the assessment.

4. The characterisation of Dr Butt’s publicly expressed views against the standard of British values was plainly evaluative. The press release revealed a two-stage exercise: assessment of his recorded views on religious, social, political and moral matters, followed by comparison with an open-textured and value-laden standard. The Extremism Analysis Unit was presented as informative and evaluative, not as a body making a definitive legal determination. A Government press release can contain opinion; its source does not make every statement within it factual.

5. The court added that, even if the allegation were treated as an inferential statement of fact, it could still fall within the honest-opinion defence. The lower court’s separate conclusion on the indication of the basis of the opinion was not under appeal.

• Court of Appeal (Civil Division): Dismissed Dr Butt’s appeal and upheld the finding that the press release was opinion. It refused the Secretary of State permission to appeal against the lower court’s determination of meaning.

• High Court, Queen’s Bench Division (Nicol J): On preliminary issues, held that the press release bore a defamatory meaning substantially as alleged, but was opinion and indicated in general terms the basis of that opinion: [2017] EWHC 2619 (QB) .