Most Read Contributor in New Zealand, September 2016
The English Court of Appeal has suggested that the UK adopt the
terminology used in New Zealand and other jurisdictions and reframe
its 'fair comment' defence against defamation to an
'honest opinion' defence to better protect the free
expression of sincerely held value judgements.
The Court delivered this view when supporting a science
writer's right to make a series of strong criticisms of the
British Chiropractic Association.
This Brief Counsel looks at the decision, and its possible
implications for New Zealand.
In British Chiropractic Association v Singh  EWCA
Civ 350, a formidable Court of Appeal bench comprising the Lord
Chief Justice of England and Wales, the Master of the Rolls and
Lord Justice Sedley, was called to determine one of the classic
dilemmas in defamation law: whether a stinging disparagement was a
statement of fact, or opinion.
Dr Singh had written an article in The Guardian where,
in the context of comment and debate during Chiropractic Awareness
Week, he wrote:
"The British Chiropractic
Association claims that their members can help treat children with
colic, sleeping and feeding problems, frequent ear infections,
asthma and prolonged crying, even though there is not a jot of
evidence. This organisation is the respectable face of the
chiropractic profession and yet it happily promotes bogus
The chiropractors were displeased. They said Dr Singh's
comments meant that the BCA knowingly promoted chiropractic as an
effective treatment for certain conditions where there was no
evidence to support such claims. There was a fierce debate in the
High Court before Justice Eady (one of the UK's leading
defamation law experts) about whether Dr Singh's comments were
fact or opinion. Justice Eady maintained they were statements of
Why did it matter?
If Dr Singh's criticisms were categorised as statements of
fact, to succeed in a defamation action he would need to prove that
they were true. That would have required armies of expensive expert
witnesses, one army for each side. Where the critical statement is
categorised as one of opinion, or fair comment as it is known in
England, that makes life easier for the defendant. If Dr Singh
could show that he had come to his opinion, genuinely held, after
reviewing various scientific trials he could successfully defend
BCA's defamation suit, and probably at a fraction of the
The Court of Appeal reversed Justice Eady. In a very readable
decision, including detailed quotation from Milton's
Areopagitica (1644) on philosophic freedom and the unhappy fate of
Galileo under the Inquisition, the Court ultimately agreed with
Judge Easterbrook, Chief Judge of the US Seventh Circuit Court of
Appeals who had ruled in a similar case:
"[Plaintiffs] cannot, by
simply filing suit and crying 'character assassination!',
silence those who hold divergent views, no matter how adverse those
views may be to plaintiffs' interests. Scientific controversies
must be settled by the methods of science rather than by the
methods of litigation. ... More papers, more discussion, better
data, and more satisfactory models – not larger awards of
damages – mark the path towards superior understanding of
the world around us."
In other words, the Court concluded that Dr Singh's
published statements were not raising issues of verifiable fact but
expressing a value judgement (here, on the lack of worthwhile
evidence to support the BCA claims). Even the word
"bogus" was, in the context, "more emphatic than
Fair comment vs honest opinion
In making its finding, the Court of Appeal also recommended that
the UK should follow the terminology used by other jurisdictions,
such as New Zealand, and use "honest opinion" rather than
"fair comment" as a defence.
"It is not open to us to
alter or add to or indeed for that matter, reduce the essential
elements of this defence, but to describe the defence for what it
is would lend greater emphasis to its importance as an essential
ingredient of the right to free expression. Fair comment may have
come to "decay with...imprecision". 'Honest
opinion' better reflects the realities."
The test in New Zealand is in part codified in the Defamation
Act 1992, and applies to genuine opinions even if motivated by
Implications of the UK decision here
We expect the decision to be of considerable interest in New
Zealand. It remains to be seen whether the principles in favour of
characterising strong value judgements as opinion, will be applied
to a wider range of topical issues.
Before this decision, New Zealand defamation lawyers defending a
case similar to Dr Singh's would have run an honest opinion
defence, but in their heart of hearts would have expected the Court
to rule as Justice Eady did. Now there is a clear authority
allowing informed commentators on scientific issues to express
strongly divergent views.
The Court also noted that the litigation had almost certainly
had a chilling effect on public debate which might otherwise have
assisted patients to make informed choices about the use of
chiropractic and observed that this would be "a surprising
consequence of laws designed to protect reputation".
Thus the judgment firmly upholds a "marketplace of
ideas" approach to freedom of expression, where reputation is
not to be protected over knowledge.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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We discuss Robinson Helicopter Company Incorporated v McDermott  HCA 22 .
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