Court of Appeal decision
Richard Millett – a blogger, observer, reporter and commentator whose subjects of interest include Israel, its policies on Palestine and the Palestinian people – issued proceedings against Jeremy Corbyn MP in relation to words that he had used in a televised interview on the Andrew Marr Show.(1) The interview was first broadcast by the BBC on 23 September 2018 when Corbyn had been leader of the Labour Party and leader of the opposition in Parliament.
During a wide-ranging interview, Andrew Marr asked Corbyn if he was an anti-Semite. Corbyn was first asked about an East London mural. He was then shown a recording of a speech that he had made in 2013 in which he had referred to people in the audience as "Zionists" who "don't understand English irony".
Marr suggested that 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.
Millett sued on the basis that although he had not been named in the statement, he was defamed because national media coverage before the broadcast of the programme had made him identifiable to viewers as one of those referred to by Corbyn's remarks about Zionists.
At the trial of preliminary issues, Mr 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.
Lord Justice Warby, giving the lead judgment, noted that Section 3 of the Defamation Act provides that 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 Saini at first instance had been whether the first condition was met.
Warby noted that the issue was a narrow one: whether, in their context, the words "disruptive" and "abusive" were 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.
Warby held that Saini had not erred in his use of the term 'bare comment', as alleged by Corbyn. Corbyn had argued that by using this term, Saini must have concluded that Corbyn's words were a statement of opinion, but one that he must, as a matter of law, treat as a statement of fact, following point (iv) of the summary of the common law principles set out in Koutsogiannis v The Random House Group Ltd ( 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
Corbyn argued that this had been wrong, as any such rule was disapproved by the Supreme Court in Joseph v Spiller ( 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.
Warby disagreed, finding that Saini had made a clear and unequivocal finding that in the context of the statement, the terms "disruptive" and "abusive" were allegations of fact. He had then 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 (which Saini had said it was not), the case would be one of bare comment and would therefore fall within point (iv) of Koutsogiannis.
Warby said that this decision was an unobjectionable application of accepted principles to the undisputed facts of the case. It was a finding of fact, with which an appeal court could interfere only if it were satisfied that the finding was wrong, which it was not. Having watched the whole interview, Warby agreed with Saini.
In Warby's view, Corbyn had been giving his explanation as to why he had said that the Zionists in the 2013 meeting did not understand English irony. To do so, he had been explaining, from his standpoint, what had happened. He had been telling the story. In doing so, he had provided a factual background and context. 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.
Warby opined that this would all have struck the viewer as Corbyn's explanation of the factual background to his statement about English irony.
Warby also held that the concept of 'bare comment' was an aspect of the first condition of the statutory test, which was exactly how Saini had treated it.
As for Spiller, Warby said that that decision was incomparable as it was about the separate common law requirement that to be defensible, a comment must "explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made", which is reflected in Section 3(3) of the Defamation Act and which had not been an issue before Saini, who had not addressed it.
Further, Warby said that Saini had approached the issue according to the key principle set out in Butt v Secretary of State for the Home Department ( EWCA Civ 933) – namely, that the ultimate determinant is how the statement would strike the ordinary reasonable reader. Warby held that this had been the correct approach.
Warby said that cases on bare comment do not lay down a rigid rule of law that require a court to depart from this key principle and artificially treat a statement of opinion as if it were a statement of fact. On the contrary, the authorities show that bare comment is a pointer, guideline or rule of thumb that reflects the key principle. This was how Saini had approached it. Warby held that therefore, although a statement that "the claimant said X, in Y tone, and in Z manner, and that was very, very abusive" would contain a comment on factual allegations, Corbyn's statement had been different. He had said of the Zionists that "they had been incredibly disruptive" and that "they were very, very abusive", without more. Such comments, as Saini had held, were statements of fact.
Finally, Warby rejected Corbyn's submissions that Saini had erred in his assessment of whether the statement was defamatory of Millet. Saini had considered whether the conduct of which Corbyn had accused Millet would be contrary to the common or shared values of British society and found that it would. This had been the correct approach. He had then considered whether the seriousness threshold had been crossed and found that it had. Again, he had approached the matter correctly and his conclusion could not be faulted. In Warby's view, 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. 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.
For further information on this topic please contact Matthew Dando at Wiggin by telephone (+44 20 7612 9612) or email ([email protected]). The Wiggin website can be accessed at www.wiggin.co.uk.
(1) The Rt Hon Jeremy Corbyn MP v Richard Millett ( EWCA Civ 567 (20 April 2021)).