“Honest comment” on a matter of public interest is one of the principle defences to an action for defamation (the others being justification (i.e. truth), absolute and qualified privilege). The defence of honest comment (or fair comment as it used to be known) reflects the protection that English law affords to an honest person who expresses an opinion, however “prejudiced, exaggerated or obstinate” that view may be. Aside from the requirement that the comment must be on a matter of public interest, it must also be based on facts which are true and the comment must be recognisable as comment as distinct from an imputation or statement of fact. A statement of fact which is not true and tends to make people think worse of a person or exposes him or her to ridicule, may well be defamatory.

The recent Judgement of the Court of Appeal on 28 February 2013 in Waterson v Lloyd and Carr [2013] EWCACIV136 once again illustrates the difficulties that the Court has in distinguishing between fact and comment in the law of defamation.

In the lead up to the May 2010 general election, the Liberal Democrats in Eastbourne published campaign literature in the form of a “free local newspaper” – the “Sussex Courier” in which various statements were made about the then Conservative MP for Eastbourne, Mr Nigel Waterson MP. Under a front page headline entitled “Expenses scandal MP faces defeat” an article stated that taxpayers had paid almost £70,000 during the last 4 years towards the cost of Mr Waterson’s Kent family home which was over 60 miles away from his constituency. The article also stated that Mr Waterson had claimed for food, cleaning, utility bills and spent over £1,000 of taxpayers’ money to have his garage door redecorated. He had also claimed for the costs of glossy brochures featuring photo-opportunities of his visits to Eastbourne. In a “Comment” column, on the second page of the same publication under the headline “Expenses scandal: Eastbourne residents speak out”, the following statements appeared “Local residents have delivered their verdict on the MP’s expenses scandal. Eastbourne Conservative MP Nigel Waterson has come under fire in recent months for his own scandalous expenses claims…….It is clear that Mr Waterson’s expenses claims have upset many people in Eastbourne”. In another publication by the Liberal Democrats, called the Eastbourne and Willingdon Express, the following statements appeared, after repeating statements made in the Sussex Courier, “We’ve seen the scandal of MP’s abusing their expenses” and “Voting Labour here in Eastbourne and Willingdon will just let our expenses scandal MP off the hook”.

Following his defeat in the general election, Mr Waterson issued proceedings for libel against his Liberal Democrat rival Steven Lloyd and Mr Lloyd’s campaigning agent, Ms Rebecca Carr. Mr Waterson claimed that the statements made about him were statements of fact and defamatory of him. It was accepted that Mr Waterson’s expenses were not linked to the unlawful breach of Parliamentary rules by various MP’s that had been the subject of much press criticism and comment. Mr Waterson argued that the criticism of his expenses claims in the articles linked him with the expenses scandal MP’s who had committed criminal offences or other breaches of the expense rules and had acted improperly in relation to their expenses. The defendants argued that the words did not suggest that Mr Waterson had broken any rules. Instead, they were simply expressions of opinion about Mr Waterson and how he had used the expenses system for his own benefit which was open to criticism. In the High Court, Tugendhat J, one of the most highly experienced defamation Judges, held that the Defendant’s words used in the articles were “plainly” statements of fact and defamatory of Mr Waterson. He considered that the “scandal” referred to had the meaning that Mr Waterson was guilty of abuse of the Parliamentary rules for his own financial advantages. He considered it significant that there was no attempt by the writers of the articles to distinguish factual statements from matters of comment or opinion.

Mr Lloyd and Ms Carr appealed to the Court of Appeal. In the Court of Appeal, two of the three Judges held that the statements were “statements of comment”. McCombe LJ held that the meaning of the words complained of was quite simple, “Mr Waterson has claimed nearly £70,000 from the taxpayer for a family home that is 60 miles from Eastbourne (fact). That is a scandal (comment).” He considered that there was no express or implied statement that Mr Waterson had acted unlawfully or broken the Parliamentary rules or had been required to repay sums previously claimed. He considered that all that was stated in the articles was that Mr Waterson had claimed expenses and in the writer’s view that was a “scandal” or “scandalous” but no more.

Laws LJ agreed with McCombe LJ. He referred to case law which makes clear that the Court should avoid “over-elaborate analysis” and this was particularly so in the context of political speech. Whilst politicians were entitled to be protected by the law of defamation, European case law made clear that the limits of acceptable criticism were wider in relation to politicians acting in their public capacity than in relation to private individuals. He quoted the observations of the Strasbourg Court in a 2005 case that “there was little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest”.

Richards LJ dissented. He considered that descriptions of Mr Waterson as an “expense scandal MP” and of his expenses claims as “scandalous” was to tar Mr Waterson with the broader brush of the MP’s expenses scandals rather than to make a comment about, and based on, the particular facts in respect of his expenses claims. He noted Tugendhat J’s observations that it would have been possible for the publications to be expressed in a way such as to make clear that the words used were comments as opposed to statements of fact.

Accordingly, by majority of 2 – 1, the Court of Appeal allowed Mr Lloyd and Ms Carr’s appeal.

Of the four Judges who considered the issue, two Judges held the challenged words were statements of fact (Tugendhat J and Richards LJ) while two held they were statements of comment (McCombe LJ and Laws LJ).

The case will provide little clarity on where the line between honest comment and statement of fact lies. The case has to be viewed on its own facts but it highlights that European law has increasing impact on the English law of defamation and that the courts will jealously guard free expression, comment and debate in the political arena and, indeed, of the type of rhetoric for which politicians are well known. As a commentator on the case has stated “political disputes should generally be settled at the ballot box, not the libel courts”. Will the more robust approach to honest comment in the political arena have wider application on more general matters of public interest?