THE HON. MRS JUSTICE TIPPLES Approved judgment Greenstein v Campaign Against Antisemitism [2020] EWHC 2951 (QB) 17. Mr Speker made the following points in his skeleton argument in relation to section 3(4): a. At common law, the objective limits of comment were ‘exceedingly wide’. The question is could any honest person, however prejudiced he might be, or however exaggerated or obstinate his views, have written this criticism? (see Gatley at para 12.27; Tse Wai Chun Paul v Albert Cheng [2001] EMLR 31, CFAHK (“Cheng”) at [20] per Lord Nicholls). A judge or jury has no right to apply the standard of its own taste or measure the right of the critic accordingly. Further, the issue is not whether anyone agrees with the opinion. b. The revised statutory defence is intended to be as generous, if not more so, than the common law: see, for example, Burki v Seventy Thirty Ltd [2018] EWHC 2151 (QB), HHJ Parkes QC at [224]-[232]. c. A claimant cannot undermine the basis of the expressed opinion by relying upon other relevant exculpatory facts that would have a bearing on whether a hypothetical person could have expressed the relevant opinion: see Carruthers at [28] to [31]. d. There must be at least one admitted fact which existed at the time of the publication from which an honest person could hold the opinions found. Further, the fact or facts must be admitted or incapable of being disproved, given the defendant’s application is for summary judgment. 18. From the terms of his skeleton argument, and his oral submissions, I did not understand Mr Mitchell to take issue with these propositions on behalf of the claimant. However, Mr Mitchell reminded me that, in order to succeed with an honest opinion defence, the statement of opinion must be based on true facts: see Morgan v Associated Newspapers Ltd [2018] EMLR 25, 577 at [25], per Nicklin J. Malice 19. The test under section 3(5) is the same as the test for malice under the common law: see Yeo v Times Newspapers Ltd (No. 2) [2015] 1 WLR 3031, Warby J (“Yeo”) at [27]. At common law the correct test for malice in the context of an honest opinion defence is honesty of belief: see Cheng at [25] and [79], per Lord Nicholls (approved in Joseph v Spiller (Associated Newspapers Ltd intervening) [2011] AC 852, SC at [67] to [68] and [108]; and see Yeo at [27]). The test for malice is hard to establish and “in practice this issue is seldom likely to be explored, for the burden is on the claimant and how can he set about proving that the defendant did not believe what he said?”: see Joseph v Spiller at [108]. 7