Godfrey v The Institute of Conservation

In determining whether publications are statements of fact or opinion, the court focuses on how the words would strike the ordinary reasonable reader in their context. A professional body’s evaluative conclusion does not become a statement of fact merely because it was reached by a formally constituted panel applying defined rules, or because it may have serious consequences. Under Defamation Act 2013, section 3, the factual basis of an opinion need only be indicated in general or specific terms; the reader need not be able to assess whether the opinion is well founded. There is no separate public-interest requirement for the statutory defence of honest opinion.

The claimant, a former member of the defendant professional organisation, brought a defamation claim concerning two website publications. The first reported a public reprimand following disciplinary proceedings concerning her email language. The second reported her expulsion from membership because her continuing behaviour was harmful, or likely to become harmful, to the organisation’s interests.

The court tried preliminary issues concerning the natural and ordinary meanings of the publications and whether they were statements of fact or opinion. The claimant contended that both publications conveyed that wrongdoing had been conclusively proved. The defendant contended that they conveyed evaluative conclusions reached under its disciplinary rules. The central issues were the proper meanings of the publications and whether the first two conditions of the honest-opinion defence were satisfied.

1. Meaning. The publications meant that the Conduct Committee had found that the claimant used deplorable and unprofessional language and had thereby fallen below the standards expected under the organisation’s Code of Conduct. The second publication meant that the Board had expelled her because of continuing behaviour towards others, despite the earlier reprimand, and considered her continued membership harmful or likely to become harmful to the organisation’s interests (paras [15]-[17]).
2. Opinion under section 3. The first two conditions of the honest-opinion defence under section 3 of the Defamation Act 2013 are questions of legal interpretation. The third condition, and the related question whether the defendant honestly held the opinion, are fact-sensitive matters for later determination (paras [23]-[26]).
3. Both publications were statements of opinion. Descriptions such as deplorable and unprofessional, and the assessment that continued membership was harmful or likely to become harmful, were value judgments requiring evaluation of conduct against the organisation’s standards and interests (paras [32]-[35]).
4. The fact that the assessments were made by formally convened disciplinary bodies applying defined criteria did not transform them into statements of fact. Nor did the seriousness of their potential consequences. The ordinary reader would understand that the bodies had evaluated underlying facts, including emails and continuing behaviour, by reference to organisational rules (paras [36]-[41]).
5. The factual basis of each opinion was sufficiently indicated. The first publication identified the relevant email language, remarks and documentary evidence. The second identified the continuing behaviour towards members, staff, partners and organisations despite the reprimand. Section 3(3) does not require the reader to be able to evaluate whether the criticism is well founded; a general indication of the underlying facts is sufficient (paras [46]-[48]).
6. There is no requirement of public interest or public debate under section 3. Nor was there anything special about a professional membership body publishing an evaluative outcome of disciplinary proceedings that prevented it relying on the defence if the publication was, in context, opinion (paras [42]-[45]). The preliminary issues were determined accordingly, with a further hearing directed for costs and case-management matters (paras [49]-[50]).