Martin Whyte v British Medical Association

For the defence of honest opinion under Defamation Act 2013, the defendant must prove the facts relied on and show that an honest person could have held the opinion on those facts. The opinion need not be reasonable, fair or objectively justified. It may be prejudiced, irrational or greatly exaggerated, provided there is a relationship between the proved facts and the opinion.

Context that merely supplies a different factual matrix, or explains the claimant’s intention, does not defeat the defence unless it shows that the defendant’s asserted facts are untrue. The question is objective. Where the issue can be resolved without determining disputed facts or conducting a mini-trial, summary judgment may be given.

The claimant, a junior doctor and former officer of the defendant trade union, brought a libel claim over an email sent to members stating that he had made deeply troubling and antisemitic comments online and that those comments were unacceptable, prejudicial, discriminatory and incompatible with holding office.

The parties agreed that the email was opinion, that it indicated the general basis of that opinion, and that the defendant held it. The dispute concerned whether an honest person could have held the opinion based on the claimant’s three tweets and their known context, within section 3(4)(a) of the Defamation Act 2013. The defendant applied for summary judgment.

1. Summary judgment. Summary judgment was entered for the defendant. The claimant had no real prospect of defeating the honest-opinion defence and there was no other compelling reason for a trial.
2. Statutory analysis. Under section 3(4)(a) of the Defamation Act 2013, the defendant first had to identify and prove the facts relied on. Truly exculpatory facts had to be taken into account only if they showed that the asserted facts were untrue and thereby removed the factual substratum of the opinion. Truly extraneous facts forming a different factual matrix were irrelevant.
3. The agreed meaning concerned comments posted by the claimant, not whether he was personally an antisemite. The relevant facts were the tweets, their content and their known context at publication. The claimant’s wider social-media history, later explanations and context unknown to the defendant did not prevent the defence.
4. An honest person could regard the second and third tweets as antisemitic and deeply troubling, notwithstanding possible uncertainty about their context or the claimant’s intention. The first tweet could likewise be understood as antisemitic in at least some contexts. The opinion did not require objective soundness, reasonableness or fairness. An honest person could be prejudiced, irrational, obstinate or grossly exaggerating.
5. Once that conclusion was reached, an honest person could also regard the comments as unacceptable, prejudicial and discriminatory, and as incompatible with holding office in a large trade union representing doctors. The assessment was evaluative and did not involve a mini-trial or findings on disputed facts. A trial would cause cost and delay without discernible benefit.