United Kingdom | Jeremy Corbyn libel action – whether his words were statement of a fact or an opinion

UK Court of Appeal : The three-judge bench of Sir Geoffrey Vos, Master Of The Rolls; Dame Victoria Sharp, President Of The Queen’s Bench Division and Lord Justice Warby dismissed the appeal filed by Jeremy Corbyn against the decision made at the preliminary trial for libel action. Richard Millett – a blogger, observer, reporter and commentator sued Jeremy Corbyn MP over remarks he made on a televised interview about Zionists. The allegations against Corbyn are of anti-Semitism when he committed while he made the comments.

The facts of the case[1] are that during a wide-ranging interview on the Andrew Marr Show (“the Programme”), first broadcast by the BBC on 23 September 2018, Andrew Marr asked Mr Corbyn if he was an anti-Semite. Mr. Corbyn was asked first about an East London mural. He was then shown a recording of a speech he made in 2013, in which he referred to “Zionists” who “don’t understand English irony”. Mr. Marr suggested this was “A strange thing to say”. The words complained of were spoken by Corbyn in answer to Marr’s suggestion. Corbyn said that he had been in a meeting in the House of Commons and that the “two people I referred to had been incredibly disruptive”. Corbyn said that “the police wanted to throw them out of the meeting”. When the Palestinian Ambassador to the United Kingdom, Manuel Hassassian, had spoken, the people had been quiet. However, according to Corbyn, “they came up and were really, really strong on him afterwards and he was quite upset by it. I know Manuel Hassassian quite well. And I was speaking in his defence…” Later on, Corbyn said that “the two had been very, very abusive to Manuel. Very abusive. And I was upset on his behalf from what he’d – he’d spoken obviously at the meeting but also the way he was treated by them at the end of it. And so I felt I should say something in his support. And I did”.

At the trial of preliminary issues, Justice Saini found that the statement referred to Millett. He also ruled on the natural and ordinary meaning of the words and found that the meaning was a statement of fact and defamatory of Millett at common law. Corbyn appealed the decision, arguing that the meaning (which he did not dispute) was not a statement of fact, but honest opinion (as set out in Section 3 of the Defamation Act 2013) and that it was not defamatory.

COURT OF APPEAL DECISION

Defence of Honest opinion

Justice Warby, giving the lead judgment, noted that Section 3 of the Defamation Act provides the defence of honest opinion.

“3 Honest opinion

  • It is a defence to an action for defamation for the defendant to show that the following conditions are met.
  • The first condition is that the statement complained of was a statement of opinion.
  • The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
  • The third condition is that an honest person could have held the opinion on the basis of—
  • any fact which existed at the time the statement complained of was published;
  • anything asserted to be a fact in a privileged statement published before the statement complained of.”

It is a defence to an action for defamation if the defendant can show that certain conditions are met. The first two conditions are that the statement complained of: is a statement of opinion; and indicates the basis of the opinion.

The issue before Judge Saini was whether the first condition was met.

Judge Warby noted that the issue whether, in their context, the words “disruptive” and “abusive” was statements of opinion or fact. Warby said that the key principle of law is that the answer to such a question must always be that which would be given by the ordinary reasonable reader or viewer. He held that this meant watching and listening to the interview as a whole, bearing in mind that the ordinary viewer would do so only once. He commented that the court should avoid over-elaborate analysis and give weight to its own impression. Warby said that this was precisely how Saini had approached the matter.

Judge Warby relied on common law principles set out in Koutsogiannis v The Random House Group Ltd ([2019] EWHC 48 (QB)), which established that:

Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment held that Saini had not erred in his use of the term ‘bare comment’

Corbyn argued that this had been wrong, as any such rule was disapproved by the Supreme Court in Joseph v Spiller ([2010] UKSC 53). Further, Corbyn argued, Saini’s approach had wrongly conflated the first two conditions of the statutory analysis, when he had been concerned only with the first.

Justice Warby disagreed and  set out an alternative basis for the decision, rejecting Corbyn’s submission that the statement was “merely expressing a view” on the basis that even if the statement were, on its face, opinion, the case would be one of bare comment and would therefore fall within point (iv) of Koutsogiannis.

In view of Justice Warby, Corbyn had been giving his explanation as to why he had said that the Zionists in the 2013 meeting did not understand English irony. In the particular words complained of, he had been presenting viewers with a factual narrative – namely, that:

  • the people referred to had disrupted several meetings at the House of Commons;
  • at one such meeting, they had been extremely disruptive; and
  • on the most recent occasion, while they had let Mr Hassassian speak, they had subjected him to extreme abuse afterwards.

Justice Warby was of the opinion that this would all have struck the viewer as Corbyn’s explanation of the factual background to his statement about English irony.

Defamation

In the view of Justice Warby, alleging disruptive behaviour that led the police to want to remove a person from a public meeting and such verbal abuse of a public speaker that the leader of the opposition was forced to speak up in controversial terms to defend him crossed the common law threshold of seriousness. Justice Saini had therefore been right to hold that such allegations would tend to have a substantial adverse effect on the attitude that people would take to Millett. Hence, Justice Warby rejected Corbyn’s submissions that Saini had erred in his assessment of whether the statement was defamatory of Millet and the seriousness threshold had been found crossed in view of british society. The Appeal was dismissed.

[The Rt Hon Jeremy Corbyn MP v. Richard Millett [2021] EWCA Civ 567, decided on April 20, 2021]


*Tanvi Singh, Editorial Assistant has put this story together.

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