Corbyn v Millett

Whether allegedly defamatory words convey fact or opinion depends on how they would strike the ordinary reasonable reader or viewer in context. A broadcast should be assessed by watching and listening to the whole publication, bearing in mind that an ordinary viewer encounters it once. Political context informs that assessment without dictating its outcome. Bare comment is a contextual guideline within the first condition of the honest opinion defence. It does not impose an automatic rule converting opinion into fact.

Common law defamatory tendency requires both an imputation contrary to society’s shared values and sufficient seriousness to affect substantially how others would treat the claimant. The seriousness threshold concerns the imputation. Publication circumstances generally belong to the separate statutory inquiry into serious reputational harm.

Jeremy Corbyn, then Leader of the Labour Party and Leader of the Opposition, described two people as disruptive at public meetings and extremely abusive towards Manuel Hassassian, the Palestinian Ambassador, during a televised political interview. Richard Millett, a blogger and commentator on Israel and Palestine, brought a libel claim. He alleged that earlier national media coverage identified him as one of those people, although the interview did not name him.

Master Cook ordered preliminary issues concerning meaning and identification, fact or opinion, and common law defamatory tendency. He declined to order a preliminary trial of statutory serious harm. Saini J, in [2020] EWHC 1848, determined that the words referred to Millett, conveyed factual allegations and were defamatory at common law.

Corbyn appealed the findings on fact or opinion and defamatory tendency. The meaning and identification findings were unchallenged. The appeal concerned the contextual distinction between fact and opinion, the role of bare comment, and the proper assessment of common law defamatory seriousness.

Appeal dismissed. Warby LJ delivered the judgment, with which Dame Victoria Sharp and Sir Geoffrey Vos agreed.

1. The distinction between fact and opinion depended on how the statement complained of would strike the ordinary reasonable viewer. For a broadcast, the court should watch and listen to the whole interview, taking account of tone and emphasis and remembering that an ordinary viewer would encounter it once. Over-elaborate analysis should be avoided. Political status and subject matter were relevant context but could not dictate the classification. Findings concerning different words in other cases could not determine the answer ([17]–[19]).

2. The classification was a finding of fact. Without legal error, appellate interference required the finding to be wrong, allowing for the first instance court’s advantages. The judge had correctly found that the allegations formed a factual narrative explaining the background to Corbyn’s earlier remarks. The court independently agreed with that assessment ([20]–[22]).

3. Bare comment belonged to the first condition of honest opinion in section 3(2) of the Defamation Act 2013. It was a guideline reflecting ordinary audience perception, rather than a rigid rule artificially converting opinion into fact. Describing conduct without explaining what occurred would tend to convey a factual allegation. This explained the approach in Cheng v Tse Wai Chun Paul and Koutsogiannis v The Random House Group Ltd. Joseph v Spiller concerned the separate requirement to indicate the factual basis of an opinion, reflected in section 3(3). That second condition was outside the preliminary issues ([23]–[24]).

4. Common law defamatory tendency required both inconsistency with society’s shared values and sufficient seriousness to affect substantially how others would treat the claimant. These were separate but complementary components. Allegations of serious disruption and extreme, distressing abuse could describe interference with the cherished value of free speech. The political setting did not make the alleged conduct acceptable. The judge’s reference to possible criminal misconduct reflected the allegation that police wished to remove the claimant; it did not add a new defamatory meaning ([29]–[33]).

5. The seriousness threshold concerned the imputation itself. Publication circumstances were generally excluded at that stage, although relevant to statutory serious harm. The threshold was also distinct from striking out an otherwise defamatory claim as an abuse under the Jameel v Dow Jones Inc principle. Although the judge’s multifactorial approach attracted criticism, the allegations themselves crossed the common law threshold. Statutory serious harm remained undetermined, and the preliminary findings stood ([10]; [34]–[35]).

• Court of Appeal (Civil Division): In [2021] EWCA Civ 567 , dismissed Corbyn’s appeal against the findings that the words conveyed factual allegations and were defamatory at common law. The meaning and identification findings were not appealed.
• High Court, Queen’s Bench Division, Media and Communications List: Saini J, in [2020] EWHC 1848, determined preliminary issues of meaning, identification, fact or opinion, and common law defamatory tendency. Master Cook had directed those preliminary issues and refused a preliminary trial of statutory serious harm.