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Honest Opinion

“However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.”
— Lord Esher in Merivale v Carson (1887) 20 QBD 275 (CA) at 281.

The essentials

What is the test?
The defence of ‘honest opinion’—formerly known as ‘fair comment’—sounds simple enough.  In fact, it’s probably one of the most complex aspects of defamation law.

The elements of the defence can be sliced and diced in different ways.  For out part, we break the defence down as requiring a defendant to prove five elements (although some will overlap in many cases):

  • first, that the particular meaning at issue was conveyed as an expression of opinion (not an allegation of fact),
  • second, that the meaning was expressed upon a factual reference point sufficiently indicated to readers, whether in terms of facts contained in the publication itself, or otherwise facts that were generally known or notorious,
  • third, that the facts underpinning this reference point were materially true, or otherwise privileged assertions of fact,
  • fourth, that the underlying facts (or privileged assertions of fact) were known to the author at the time of publication,
  • and fifth, that:
    • if the defendant was the author, that they genuinely believed the meaning expressed at the time of publication,
    • if the defendant was not the author, but the author was their employee or agent, that:
      • in the context of the publication, the meaning expressed by the author did not purport to be held by the defendant themselves,
      • and the defendant believed the author genuinely held the meaning they expressed,
    • if the defendant was not the author, and the author was not their employee or agent, that:
      • in the context of the publication, the meaning expressed by the author did not purport to be held by the defendant themselves, nor held by any of the defendant’s employees or agents,
      • and the defendant had no reasonable cause to believe that the author did not genuinely hold the meaning they expressed.

If this sounds convoluted, then you’re not alone.  So, let’s unpack these elements one by one.

First element: conveyed as an expression of opinion
At the most basic level, an expression of opinion is something that can be distinguished from an allegation of fact.  A dichotomy sometimes used is ‘statement of opinion’ vs ‘statement of fact’.  But in our view, the word ‘statement’ can imply an assertion, which in turn can imply an allegation.  And certainly an ‘allegation of opinion’ doesn’t sound right.  So let’s keep things as clear as possible and remove ‘statement’ altogether:  We either have an ‘expression of opinion’ for which the defence of honest opinion may be available, or an allegation of fact, for which the defence won’t be available.

A convenient way to distinguish the two—although it won’t work in every case—is that an expression of opinion is usually evaluative and cannot be objectively verified (“Louis sells disgusting wine” or “Louis does not look good naked” or “Louis was a poor choice to be cast as Othello”), whereas an allegation of fact is definitive and can be objectively verified (“Louis has been charged with possession of a Class-A substance” or “Louis lied about his whereabouts on Saturday evening”).

However, an expression of opinion can also arise from words which, in isolation, might look like an allegation of fact, but when one takes the statement as a whole, would in fact be understood by readers as an opinion.  For example, “Sally is corrupt.”  In isolation, clearly that’s allegation of fact.  But it might be an opinion in the context of the statement as a whole: “I saw Louis getting arrested on Saturday.  He was handcuffed and Constable Sally was searching his pockets.  She pulled out a wad of cash.  Louis and Constable Sally exchanged words.  Sally smiled, put the cash in her pocket, undid Louis’s handcuffs, and he walked away.  Sally is corrupt.”  Here, readers would understand the assertion of corruption to be an opinion based on the facts previously stated.  (Real-life examples are much more nuanced.)

Why does the law treat expressions of opinion different to allegations of fact?
The rationale is that people place less weight on opinions than facts.  So as long as there is a factual reference point for an opinion, then readers can recognise it as being just that: the author’s opinion.  What’s more, the freedom to express opinions of any kind is a constitutional plank in New Zealand.  Honest opinion has been described as “the very essence of freedom of speech: the right that citizens should be able openly to air their views and exchange criticisms on matter which concern them”.

What are some examples of expressions of opinion vis-a-vis allegations of fact?
This can get somewhat subjective, but let’s give it a go.

Expression of opinion: “Sally sells shoddy tables.”

Now, one could debate whether Sally actually sells shoddy tables.  We might launch an attack on the basis that the legs are shaky and the wood is dented.  On the other hand, you might give a positive appraisal of Sally’s tables because the legs have hand-made carvings and the table tops are antique rimu.  Both are legitimate opinions; both are evaluative.  Of course, your opinion is positive; ours is potentially defamatory of Sally for implying she is incompetent in her trade.  Yet, because our comment is an expression of opinion, we would have recourse to the defence of honest opinion – provided, of course, we could establish the other elements of the defence.

Allegation of fact: “The kids said they were thirsty, so Sally brought over a dozen beers.”

If one essentially alleged that Sally supplied alcohol to children, the truth of the matter is, she either did or she didn’t.  It’s can’t be a question of opinion or degree.  And, in most contexts, the statement would be defamatory for suggesting that Sally was irresponsible and had broken the law.  (“But what if they were her kids?  What if there was nothing else to drink, they were low-strength beers, and the kids were literally at the point of acute dehydration?  What if…”  We take your point, so again, “in most contexts…”.)   The important thing is that because the statement was framed as an allegation of fact, an honest-opinion defence would not be available, so one would have to rely on another defence or face liability.

What are other indicators of an expression of opinion?
Comments are not always clearly marked by evaluative adjectives (“terrible teacher”; “evil gardener”).  In these circumstances, the context will points towards whether what is being sued upon is an expression of opinion or allegation fact.  Some key indicators are:

  • surrounding words,
  • surrounding sentences,
  • positioning of the comment sued upon,
  • and surrounding public discussion.

Surrounding words:  The ‘Honest Opinion 101’ lesson is to precede everything with disclaimers: “In my opinion”, “I believe”, “I think”, “I consider”, “it seems”, “it appears” and so on.  And indeed, in most cases, this will strongly suggest to readers that whatever comes next is the author’s opinion.  However, this strategy is not foolproof.  For example, you might post a simple Tweet: “My biggest scoop of the day is that, in my opinion, Louis defrauded Sally of $10,000”.  If there is no factual reference point for the ‘opinion’, then the law will likely treat this as a “bare comment” – the equivalent of an allegation of fact because it is absent of any perceptible evaluation or context.  This is also sometimes described as something being “masqueraded as opinion”.

Surrounding sentences: Many people think that if one makes an assertion, it must be an allegation of fact.  Not necessarily.  It depends on the degree of evaluation in the assertion available to readers.   Generally speaking, if one states several provable facts and finishes with an assertion, the latter will be understood by readers as an expression of opinion.  For example:

  • Our “Sally is corrupt” scenario mentioned above.
  • And another: “Sally was cleaning her rifle in the yard.  Louis was shooting some hoops in the yard.  I went inside and heard a gun go off.  I rushed outside and Louis was lying face down, a pool of blood emerging from his head.  Sally shot Louis with her gun.”   In isolation, “Sally shot Louis with her gun” is clearly an assertion of fact.  But having read the full statement, readers would likely infer that the assertion is an evaluative inference drawn from the preceding facts.

And for an example of what might not be regarded as an expression of opinion:

“As I walked into the kitchen, I saw Sally, a bottle of Vodka on the table, and a baby’s bottle filled with clear liquid.  Sally was feeding the baby vodka.”  Here, there is quite a leap between the supposed factual reference point—even if true—and the final sentence.  Perhaps the statement would need more information before readers could conclude the final sentence was an opinion drawn from the preceding facts.  If readers were left with the impression that the final assertion was predicated on other facts in Sally’s possession but which she hadn’t disclosed, then honest opinion would be in jeopardy.  It would be fair to say that speculative opinions that are not couched by at least an acknowledgement of speculation, are dangerous.  If readers even might be left to consider that the final assertion was based on additional information not disclosed, then an honest-opinion defence may be imperilled.

Positioning of comment sued upon:  Courts will often take into account factors such as whether what is sued upon appeared in the “opinion” or “comment” section of a newspaper or website, or were otherwise clearly marked as so.  Disclaimers at the start of a book or the end of a film might also be taken into account (these are probably weaker – who really takes notice of them?).  However, none of these factors are decisive; substance is more important than form, and a disclaimer is rarely a get-out-of-jail-free card.

Surrounding public discussion:  This consideration somewhat ties into the next element of the defence – whether the expressed meaning had a factual reference point which was sufficiently indicated to readers, whether within the publication itself or otherwise generally known.  But all things being equal, if an issue absolutely dominating the news was that Dr Louis had been molesting his patients, and you posted a simple tweet, “Dr Louis is a perverted creep”, then this would likely be understood as an expression of opinion – the factual reference point implicitly gleaned from the surrounding public discussion.  (Of course, there might be another Dr Louis who is identified, in respect of whom honest opinion would not apply.)

In all cases, the fundamental consideration will be the context of whatever is sued upon.

Second element: a meaning “expressed upon a factual reference point sufficiently indicated to readers”
Essentially, the reader must be in a position where they can comprehend at least the subject-matter upon which the author is commenting.   Without this, the opinion exists in a vacuum and is therefore treated as an allegation fact.

For the reader to be put in this position, the statement must direct readers to either:

  • a factual reference point that is so generally known (or notorious) that even an implicit allusion to the subject-matter will sufficiently inform readers about what is being commented upon,
  • or a factual reference point concerning subject-matter that is not so generally known (or notorious), for which the author will need to adequately disclose to readers the subject-matter by setting out the essential facts.

Classically, the law provided that the author must put readers in a position to judge for themselves whether they agreed or not with the author’s opinion; to test the opinion’s validity.  However, this adds an unnecessary—and we would say, inaccurate—layer of complexity.  All that really matters is that readers are able to recognise the meaning expressed as being simply an opinion.  (We tread carefully here, though, because the Supreme Court has—in what is still binding authority—rationalised the defence on the basis that the reader should be able to assess the validity of the opinion. But respectfully this slightly misses the point.)

Recall our earlier example: “My biggest scoop of the day is that, in my opinion, Louis defrauded Sally of $10,000”.  How could a reader possibly know upon what I am basing my supposed opinion of Louis’s fraud?  But let’s suppose my full statement was: “Bringing you our next instalment of ‘almighty DIY kitchen rip-offs’, where we look at tradespeople fleecing customers with defective goods, my biggest scoop of the day is that, in my opinion, Louis defrauded Sally of $10,000.”  Now, we’re still going to have to establish some pretty major underlying facts here in order to establish the defence of honest opinion, but at least now readers have a factual reference point for what we’ve opined about Louis.

The law once framed the requirement as being a comment based “on facts truly stated“.  As we will discuss, the underlying facts have to be materially true (or privileged assertions of fact).  However, whether or not those facts must be “stated”, is potentially misleading; as the law now makes clear, the opinion need only sufficiently indicate to readers the facts on which it is based, whether explicitly or implicitly, at least in general terms.  So, rather than just “Louis was a poor choice to be cast as Othello“, the reader should be able to understand why this is said to be so.  Is it because Louis forgets his lines?  Is it because Louis has a propensity to get drunk before he goes on stage?  Is it because there were actors of colour who should more appropriately have played the role?  The relevant subject-matter of the opinion—its pertinence—needs to be understood by readers.

Third element: the factual reference point must be based upon materially true facts, or upon allegations of fact that are subject to privilege
Putting to one side situations where the expressed meaning is based on privileged assertions of fact—to which we’ll come shortly—an opinion doesn’t have to be ‘right’ or ‘correct’, because of course an opinion is inherently subjective.  But the underlying facts need to be materially true, so far as they affect the defamatory meaning that is drawn.  The author must “get their basic facts rights”.

“Bringing you our next instalment of ‘almighty DIY kitchen rip-offs’, where we look at tradespeople fleecing customers with their knowingly defective wares, my biggest scoop of the day is that, in my opinion, Louis defrauded Sally of $10,000.”

What facts do we have to establish to support the defence?  Certainly the following: That Sally engaged in a commercial transaction with Louis.  That Louis supplied Sally with wares for a significant price.  That those wares were defective.  That Louis sold these wares with this knowledge.  And that in doing so, Louis deceived Sally.

What are we not necessarily going to have to establish?  The precise amount Sally was charged – if in fact she was charged $8,988, then that’s unlikely to be a material difference; but if the invoice was $2.50, that might make the alleged ‘fraud’ so trivial that we haven’t gotten our facts right.  If in fact they were bathroom wares, rather than kitchen wares, that would be unlikely to affect the substance of the defamatory meaning expressed.  If in fact we had a bigger scoop of the day, that wouldn’t be a germane because it has nothing to do with the criticism we’ve expressed.

But perhaps Louis had in fact told Sally that the wares were from a supplier whose products had proved faulty in the past, and that he would replace them for free if they didn’t work out.  If so, that would put a completely different complexion on the transaction.  We wouldn’t have gotten our facts right, so the defence would likely fail.

As foreshadowed, the factual reference point might also be based upon privileged allegations of facts.  These sorts of cases are quite rare.  But suffice to say that if a court decision made a particular finding of fact—that Louis defrauded Sally of $10,000—you would be entitled to publish a blog post containing disparaging opinions about Louis based on the Court’s findings, with recourse to the defence of honest opinion.  Even if Louis did not commit fraud, which Louis could demonstrate when suing you for defamation, then still your opinion would likely be protected as honest opinion.  However, the law is a little more stringent where privileged assertions of fact are relied upon; you’re probably required to at least inform readers the basis of the underlying allegation of fact: that it was contained in the Court judgment.

This example might get a little complicated in the online era.  If Louis’s conviction was set aside on appeal, and then you continued publishing the scathing blog post using the now-debunked allegations of Louis’s fraud as the basis for the opinion, the continuing publication on your blog might no longer be protected as honest opinion.

Fourth element: facts known to the author at the time of publication
This is the most simple element but it is very important.  The facts upon which an expression of opinion is made, must not only exist at the time of publication; they must be known to the author at the time.  One cannot look into the future and comment on facts that haven’t occurred.  Equally, one cannot comment on facts about which one is ignorant.  That said, it is sufficient if the defendant can prove they knew of the facts in some general way, even if those facts were not at the front of their mind when they expressed the opinion sued upon.  The rationale here is that this ‘forgotten’ information may have contributed to the opinion expressed.

This element of the defence is a clear distinction from the defence of truth.  There, the defence can be supported by any established fact, including facts of which the defendant comes into possession post publication, including facts elicited only at trial.

Fifth element: genuine belief
A lynchpin of the defence of honest opinion, is that the opinion expressed was genuinely—honestly—held.  As we noted earlier, the defence used to be called ‘fair comment’.  This was misleading because it implied that the comment (opinion) had to be ‘fair’ or ‘reasonable’.  Not so; honesty is the touchstone, not reasonableness.  Indeed, the defence of honest opinion is there to protect opinions that are prejudiced, obstinate, exaggerated, stupid, irrational, pig-headed or outright unreasonable, as well as those “expressed in pungent and offensive tones”.

That said, it is a subjective element, and for the defendant to prove.  As a result, the defendant will generally be required to give evidence in Court to establish genuineness.  A skylight of exception is for opinions based on clearly established facts about a plaintiff’s misconduct that “would produce a comment from any dispassionate observer similar to that from the defendant” – a very high bar.

In most cases, an honest-opinion defence is raised by the author of an allegedly defamatory statement (because it is normally the author who is sued).  It is she or he who will have to give evidence to establish they genuinely held the opinion expressed.  In the fairly rare cases where the author’s genuineness in their opinion is realistically contested—it is almost always contested, but usually without any real conviction at trial—the main way plaintiffs will seek to rebut the defence is by showing that the author expressed contrary views about the subject-matter previously, or that the author was aware of other facts at the time they expressed the opinion that would undermine their ability to genuinely hold the opinion.

There are also two scenarios where an honest-opinion defence may be raised where the defendant is not the actual author.

First, for things like newspapers’ letters-to-the-editor, or guest columnists, or talk-back callers, or people commenting on a blog post,  if the newspaper, radio station or website owner is sued for the author’s comments, they will have an honest-opinion defence if they can establish that:

  • in the context of the publication, the meaning expressed by the author did not purport to be held by the defendant themselves, nor held by any of the defendant’s employees or agents,
  • and the defendant had no reasonable cause to believe that the author did not genuinely hold the meaning they expressed.

So, the more fanciful the opinion, or the weaker the factual basis for it, then perhaps the greater likelihood the defendant had reasonable cause to believe the opinion was not genuinely held.  This reflects one reason why newspapers require names and contact details to be provided when one submits a letter-to-the-editor, and why email addresses are often required before readers’ comments will be published online, and why talk-back shows often ‘screen’ those calling in.  This allows those exercising editorial discretion to make a judgement call whether a certain extreme or controversial opinion is genuinely held by its author.  This might seem a tricky duty to discharge, but the law gives such non-author defendants wide scope – after all, the defence is designed to foster the airing of people’s views, not to inhibit them.

Second, take the example of a journalist writing an opinion piece for their newspaper.  If the newspaper’s proprietor is sued over the journalist’s opinion, it will have an honest-opinion defence if it can establish that:

  • in the context of the publication, the meaning expressed by the journalist did not purport to be held by the newspaper itself,
  • and the newspaper (or, rather, those controlling its editorial operations) believed the author genuinely held the meaning they expressed.

Unlike for third parties unconnected to the defendant, this threshold requires the defendant to apply a little more rigour to establishing the genuineness of the opinion.  The defendant must, itself, subjectively believe that the author genuinely believed the opinions expressed.  This also applies to a defendant’s agents – it’s not just about media.  So, for example, if one hired a PR firm or lawyer to speak on one’s behalf about an issue or crisis, then one would have to be satisfied that whatever the spokesperson said, was genuinely believed by them.  To us, this seems to be a fair balance.

Masterclass

Legal practice tips
For publishers:

  • It always safest to make an explicit reference to the subject-matter on which you are commenting, even on a matter dominating the news.  Hashtags are useful.  For example, if tweeting about something on a television-show segment, a hashtag of the show will likely serve as a sufficient factual reference point for readers.
  • Sometimes it’s difficult to know whether something is sufficiently ‘generally known’ so as to require a comprehensive setting out of facts.  As perhaps one litmus test, in a Canadian case basic details of the Harry Potter series were regarded as something of general knowledge.  If in doubt, consider whether three ordinary people from different generations (that is, aged 18, 48 and 78) would immediately understand on what you’re commenting.  If your answer is ‘maybe’, then you should set out more facts.
  • If you allow third-party comments on your website, perhaps they should be manually approved before they are published.  This gives you a chance to review them for, not least, any good reason why you might suspect the opinions are not genuinely held.
  • The law used to require an additional element of honest opinion: that the matter commented upon was a matter of “public interest”.  Despite a couple of hangover references to this element in rules of court, it is no longer an element of the defence; honest opinion can apply to any opinions now, whether they concern public or purely private matters.

For plaintiffs:

  • Although the genuineness of an opinion is an element for the defence, if the plaintiff wishes to challenge it, they must file a Section 39 notice within 10 days after the defence is raised.  This is a legislative requirement in the Defamation Act, not the High Court Rules.  Many a red-faced lawyer has overlooked this requirement.  Don’t be one of them; the issue of leave to file out of time has remarkably generated its own body of case law.  When you receive a statement of defence raising honest opinion, mark the due date for your Section 39 notice in your diary.  And then set several reminders.
  • In appropriate cases, it may be useful to seek an order striking out a defence of honest opinion on the basis the particular meaning is not capable of having been an expression of opinion.  This works the same way as applications concerning whether a pleaded meaning is capable of arising, or is capable of being defamatory (albeit these are normally made by defendants in a strike-out context).
  • HCR 8.46 provides that that if a defendant pleads that the words or matters complained of are honest opinion on a matter of public interest, no interrogatories can be allowed as to the defendant’s sources of information or grounds of belief “unless the interrogatories are necessary in the interests of justice”.  Aside from the rationale to prevent a plaintiff from interrogating to discover potential witnesses or other defendants—a rationale which, at least to us, itself is not particularly convincing—this is a strange rule.  Most of the relevant cases are 100 years old, and in any event an exception has been carved out whereby the plaintiff can interrogate on facts alleged in their Section 39 notice – which would seem to defeat the point.  So perhaps don’t feel constrained by a first reading of this rule; it has more nuances than you think.

For defendants:

  • An honest-opinion defence must engage with the plaintiff’s pleaded meanings; it cannot simply be raised upon the defendant’s own conceptualisation of the actual words that were used.  This would amount to positing a defence to a meaning that is not in issue, and defendants in New Zealand are not permitted to raise alternative meanings, whether for truth or honest opinion.  That said, as the law stands, a defendant can virtually guarantee their honest-opinion defence will not be struck out on this basis so long as they plead it this way: “If the [publication] had any of the meanings alleged by para [X] of the statement of claim (which is denied) such meaning or meanings were conveyed by the publication as expressions of opinion.”  
  • Whether a meaning sued upon was conveyed as an expression of opinion or allegation of fact, is ultimately a question of fact.  However, the issue is assessed by looking at the meanings pleaded and the publication sued upon as a whole.  So, although a defendant cannot raise their own meanings, one is not totally constrained by the plaintiff’s pleaded meanings when positing the defence.
  • The courts have thrown up mixed theories as to how the particulars of honest opinion should be pleaded.  Compiling these authorities, we consider the safest course is as follows:
    • First, select all the meanings to which you intend to raise honest opinion.
    • Second, for each such meaning, set out under a sub-heading “Publication Facts”, the facts which, if established, would be capable of establishing the particular meaning as honest opinion.  These will usually comprise any allegations of fact contained in the publication itself, from which the meaning has been drawn, and also any additional facts which were generally known at the time of publication (from which readers might also draw the meaning’s factual reference point).
    • third, set out under a sub-heading “Supporting Facts and Circumstances”, any particulars that tend to support the Publication Facts.  These can include ancillary matters, and even matters that were not known at the time of publication.  This is because the purpose of these particulars is to help establish the Publication Facts, which in turn help establish the factual basis for the meaning expressed.
      • Technically, one is not required to address each meaning individually, but we consider it a matter of good practice as it helps to distill the issues to be resolved at trial, especially where there are a lot of meanings in issue.  Where the meanings are fairly similar, this might simply mean that many of the Publication Facts and Supporting Facts and Circumstances are repeated.  While a defendant may wish to muddy the waters somewhat, it is ultimately for them to establish the defence at trial, not the plaintiff, so clearly laying out the defence is probably as much in the defendant’s interest as well as the plaintiff’s interest in being able to assess the case they have to meet.

Recommended reading

For what is, at least to us, the most authoritative discussion on how the defence of honest opinion should be pleaded and proceed at trial in New Zealand: see paragraphs [71]—[107].

Relatedly, the Court of Appeal’s guidance in Simunovich v TVNZ [2008] NZCA 350, [2008] BCL 938 is also worth consulting.  However, that was a very complicated case and, unfortunately contrary to its decision in TVNZ v Haines, the Court of Appeal confusingly suggested that a defendant should identify as part of its pleading “those parts of the defamatory publications that are said to be honest opinion”.  If by this the Court meant a defendant should identify the meanings said to be honest opinion, then that is correct, but a defendant is not required—and should not—try to divide the publication up into expressions of opinion and allegations of fact, for that will simply lead back to the Court of Appeal’s reasoning in TVNZ v Haines as to why this is wrong.

For demarcation between truth and honest opinion, including in respect of permissible pleadings and particulars.  The decision deals with these issues in an overlapping fashion, so we think it’s probably best to read the whole decision.

For authority on:

    • the form of pleading by which a defendant can demonstrate the defence is raised in respect of the plaintiff’s pleaded meanings: see paragraphs [28]–[32],
    • the now-antiquated ‘rolled-up plea’: see paragraphs [33]–[36],
    • the proposition that a defendant can both deny the availability of the meanings pleaded but also raise a defence of honest opinion predicated on the basis that the denied meanings were genuinely believed by the author at the time of publication: see paragraphs [37]–[41],
    • reconciliation of the Court of Appeal’s decisions in TVNZ v Haines and Simunovich v TVNZ: see paragraphs [42]–[54],
    • and the proposition that a defendant cannot raise alternative meanings for honest opinion (in tandem with the existing rule prohibiting alternative meanings in support of a truth defence): see paragraphs [55]–[70].

For authority concerning:

    • the sufficiency of particulars of honest opinion to support a tier-one meaning: see paragraphs [5]–[8],
    • and rare decision-making on the application of s10(2)(a) and (b) of the Defamation Act, in this case whether a regular but unpaid columnist of a newspaper can be regarded as an agent of the newspaper, so as to require a higher degree of editorial oversight in the genuineness of opinions expressed: see paragraphs [18]–[25].
  • Joseph v Spiller [2010] UKSC 53, [2011] 1 All ER 947 (United Kingdom Supreme Court)

For a comprehensive review of the historical origins of the defence of honest opinion, and some of the issues that have plagued court decisions over the last century or so.  The whole decision should be read.  (As an aside, we note the Supreme Court renamed the defence: from “fair comment” to “honest comment”.  This can be quickly disregarded, since England’s new legislation in 2013, in turn, renamed the defence “honest opinion”).

Well, we did warn that honest opinion is complex! So if our brains have not completely hazed over by now, let’s steel ourselves for a discussion of privilege – there’s quite a few moving parts here, too.