statement published before the statement complained of. (5) The defence is defeated if
the claimant shows that the defendant did not hold the opinion.”
79.
In Burki v Seventy Thirty Limited [2018] EWHC 2151 (QB) at paragraphs 224 to 232 the
statutory defence was considered together with the Guidance Notes on the Defamation
Act 2013. It was noted that the statement must be a statement of opinion pursuant to
section 3(2) of the Defamation Act 2013, which reflects the pre-existing common law. It
was noted that sections 3(3) and 3(4) of the Defamation Act 2013 were intended to retain
the broad features of the common law defence as to the necessary basis for the opinion
expressed “but avoid the complexities which have arisen in case law” in particular as to
sufficient truth of the facts on which the comment is based and the need to indicate facts
on which the comment is based.
80.
Any approach to this defence must be consistent with the protections given to freedom
of expression as set out in article 10 of the European Convention on Human Rights
(“ECHR”). This includes the essential role of the press in a democratic society and its
duty to impart information and ideas on matters of public interest. The vital
importance of political speech, to which the highest value is attributed by the law,
means that the limits of acceptable criticism of a politician are wider than for another
individual, see Lingens v Austria (1986) 8 EHRR 407 and Flood v Times Newspapers
[2012] UKSC 11; [2012] 2 AC 273. Yeo v Times Newspapers Ltd [2015] EWHC 3375
(QB); [2015] 1 WLR 971.
81.
Section 4 of the Defamation Act 2013 provides: “(1) it is a defence to an action for
defamation for the defendant to show that- (a) the statement complained of was, or
formed part of, a statement on a matter of public interest; and (b) the defendant
reasonably believes that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown
the matters mentioned in subsection (1), the court must have regard to all the
circumstances of the case. (3) If the statement complained of was, or formed part of, an
accurate and impartial account of a dispute to which the claimant was a party, the court
must in determining whether it was reasonable for the defendant to believe that publishing
the statement was in the public interest disregard any omission of the defendant to take
steps to verify the truth of the imputation conveyed by it. (4) In determining whether it
was reasonable for the defendant to believe that publishing the statement complained of
was in the public interest, the court must make such allowance for editorial judgement as
it considers appropriate. (5) For the avoidance of doubt, the defence under this section
may be relied upon irrespective of whether the statement complained of is a statement of
fact or a statement of opinion. (6) The common law defence known as the Reynolds
defence is abolished.”
82.
The proper approach to take to this section is set out in the judgment of Sharp LJ in
Economou v De Freitas from paragraph 75. Although the common law defence was
abolished previous cases were relevant in interpreting section 4. Section 4 is “concerned
to provide a proper degree of protection for responsible journalism when reporting
matters of public concern”, see Ecomomou v De Freitas at paragraph 78 referring to a
statement in Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300. The approach to
section 4 must be consistent with the protections for freedom of expression provided by
article 10 of the ECHR as set out above.