“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 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 and distributed campaign newsletters (on behalf of the Defendant) designed to look like local newspapers. One newsletter referred to Mr Waterson (the Claimant) as an ‘expenses scandal MP’ in a headline and internal article and a subsequent newsletter made the same allegation.

Following his defeat in the general election, Mr Waterson issued proceedings in the High Court for libel against his Liberal Democrat rival Steven Lloyd and Mr Lloyd’s campaign agent, Rebecca Carr. Mr Waterson claimed that the statements made about him were statements of fact and defamatory of him, in that they linked him with the expenses claims of various MPs who had been guilty of abuse of Parliamentary rules for their own benefit. At the trial it was accepted that Mr Waterson’ expenses were not linked to the unlawful breach of Parliamentary rules by MPs. The Defendant pleaded the defence of honest comment. In the High Court, Tugendhat J held that the Defendant’s words were “plainly” statements of fact and defamatory of Mr Waterson. Tugendhat J 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 (McCombe LJ and Laws LJ) held that the statements were “statements of comment”. Laws LJ highlighted European case law to the effect that there was little scope under the European Convention on Human Rights for restriction on political speech or on debate of questions of public interest. Richards LJ dissented. He considered that the description of Mr Waterson as an “expense scandal MP” was to tar Mr Waterson with the broader brush of the MP’s expenses scandals.

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?