John Ware v Roger Waters & Anor

In determining whether defamatory statements in a broadcast interview are fact or opinion, the court must assess the programme as a whole and adopt the impression of the hypothetical reasonable viewer. The exercise is highly fact-sensitive and should avoid over-analysis. Political context and a speaker’s strong views are relevant but do not determine the result.

A statement may be opinion where its basis is indicated in general or specific terms. A bare descriptive assertion may nevertheless be understood as fact where it conveys that the claimant did something without identifying the conduct said to justify it. The court must distinguish an opinion about conduct from a factual assertion that a person positively supported conduct such as genocide.

The claimant, a journalist and documentary maker, brought a libel claim concerning statements made by the first defendant during an interview broadcast by the second defendant in two edited versions. The statements followed an extract from the claimant’s documentary about allegations that the first defendant was antisemitic.

The parties agreed that the statements were defamatory. The court was required to determine their natural and ordinary meaning, whether they were statements of fact or opinion, and, if opinion, whether the programme indicated the basis of the opinion. The question of common-law defamatory meaning therefore did not require determination.

1. Meaning. The court assessed each version of the programme, with and without captions, as a whole. Its task was to determine the single natural and ordinary meaning conveyed to the hypothetical reasonable viewer. The programme’s political and partisan character, its “us and them” presentation, and the interview format formed part of the relevant context. The captions did not materially alter the meaning.
2. Statement 1. The first defendant’s description of the claimant as a lying, conniving Zionist mouthpiece meant that the claimant had made a documentary containing lies about him, in response to his public support for the Palestinian cause, because the claimant was acting as a Zionist mouthpiece and sought to undermine that support. This was an expression of opinion insofar as it conveyed an assessment of the documentary and the claimant’s motivation. The documentary was indicated to be the basis of the opinion for the purposes of Defamation Act 2013, section 3(3).
3. Statement 2. The references to the claimant “cheerleading the genocide” and being a “pro-genocider” meant that he positively supported the genocide of the Palestinian people by Israeli forces, with genocide understood as the wholesale destruction of the Palestinian people. These were bald statements of fact, not expressions of opinion. The political context and the first defendant’s general worldview did not convert them into opinion, and the basis requirement was not satisfied.
4. The statements were defamatory at common law, as the defendants accepted. The preliminary issues were determined accordingly. The claim was not otherwise adjudicated by this judgment.