PROTECTING INFERENCES OF FACT IN DEFAMATION LAW: FAIR COMMENT AND HONEST OPINION

Abstract

Distinguishing comment from allegations of fact within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory honest opinion defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated comment with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.