Defamation Defences: English Court Of Appeal Attracted By NZ Defamation Law

The English Court of Appeal has suggested that the UK adopt the terminology used in New Zealand and other jurisdictions and reframe its 'fair comment' defence against defamation to an 'honest opinion' defence to better protect the free expression of sincerely held value judgements.

The Court delivered this view when supporting a science writer's right to make a series of strong criticisms of the British Chiropractic Association.

This Brief Counsel looks at the decision, and its possible implications for New Zealand.

In British Chiropractic Association v Singh [2010] EWCA Civ 350, a formidable Court of Appeal bench comprising the Lord Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sedley, was called to determine one of the classic dilemmas in defamation law: whether a stinging disparagement was a statement of fact, or opinion.

Dr Singh had written an article in The Guardian where, in the context of comment and debate during Chiropractic Awareness Week, he wrote:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments." The chiropractors were displeased. They said Dr Singh's comments meant that the BCA knowingly promoted chiropractic as an effective treatment for certain conditions where there was no evidence to support such claims. There was a fierce debate in the High Court before Justice Eady (one of the UK's leading defamation law experts) about whether Dr Singh's comments were fact or opinion. Justice Eady maintained they were statements of fact.

Why did it matter?

If Dr Singh's criticisms were categorised as statements of fact, to succeed in a defamation action he would need to prove that they were true. That would have required armies of expensive expert witnesses, one army for each side. Where the critical statement is categorised as one of opinion, or fair comment as it is known in England, that makes life easier for the defendant. If Dr Singh could show that he had come to his opinion, genuinely held, after reviewing various scientific trials he could successfully defend BCA's defamation suit, and probably at a fraction of the cost.

The Court of Appeal reversed Justice Eady. In a very readable decision, including...