Corbyn v Millett

Whether words are statements of fact or opinion under Defamation Act 2013, section 3(2), depends on their effect on the ordinary reasonable reader or viewer in their full context. In a broadcast case, the court should watch and listen to the interview as a whole and avoid an over-elaborate textual analysis.

“Bare comment” is not a rigid rule. It is a practical indication that an unparticularised description of conduct may be received as an allegation of fact. At common law, a defamatory meaning must both offend shared societal values and be sufficiently serious to tend substantially to harm reputation. The seriousness inquiry concerns the imputation itself, not circumstantial matters relevant to statutory serious harm.

Richard Millett brought a libel claim arising from statements made by Jeremy Corbyn in a televised political interview. Although unnamed, the claimant alleged that media coverage made him identifiable as one of the people described.

At the preliminary-issues trial, Saini J held that the words referred to the claimant, were statements of fact, and were defamatory at common law. The reference ruling was not appealed. The defendant appealed the latter two rulings from [2020] EWHC 1848. The central questions were whether descriptions of conduct as disruptive and abusive were fact or opinion, and whether the resulting meaning met the common-law test for defamation.

1. Appeal dismissed. The court upheld the judge’s findings that the words complained of were statements of fact and were defamatory at common law.

2. The first condition of the honest-opinion defence in section 3(2) of the Defamation Act 2013 asks whether the statement complained of is fact or opinion. The decisive question is how it would strike the ordinary reasonable viewer. For a broadcast, that requires viewing and hearing the interview as a whole, once, in its context. The inquiry is highly fact-sensitive, and appellate intervention in the first-instance factual finding is justified only if it was wrong.

3. In context, the descriptions of the relevant people as disruptive and abusive were presented as part of a factual narrative explaining what had occurred at meetings. They would therefore be understood as allegations of fact, not evaluative opinion.

4. The judge’s alternative reasoning on “bare comment” was also correct. The concept operates at the first stage of distinguishing fact from opinion. It is a contextual guideline, not an artificial rule of grammar. A person who uses a descriptive term without giving particulars of the conduct described will tend to be understood as making an allegation of fact. Section 3(3), concerning indication of the basis of an opinion, is a separate condition and was not a preliminary issue in this case.

5. The common-law inquiry has complementary requirements: the imputation must be contrary to shared societal values and must cross the threshold of seriousness by tending substantially to affect how people treat the claimant. Allegations of conduct so disruptive that police wished to remove a person from a public meeting, and of extreme abusive conduct that distressed a speaker, satisfied both requirements. The court accepted that the judge should not have treated circumstantial matters as part of the common-law seriousness threshold, but held that the imputation itself plainly crossed that threshold.

• Court of Appeal (Civil Division): dismissed the defendant’s appeal and upheld the challenged preliminary rulings.
• High Court, Queen’s Bench Division, Media and Communications List: Saini J held that the words referred to the claimant, were statements of fact, and were defamatory at common law: [2020] EWHC 1848.