Defamation Defence - Honest Opinion

Question 1

What is honest opinion?

Answer 1

That an individual has a right to express his/her opinion in matters as long as the opinion is honestly held and the speaker for the basic facts right

(protects freedom of expression)

Question 2

What are some examples of honest opinion?

Answer 2

Political opinions, opinion editorial, Mike Hosking, Piers Morgan, talk-back radio, comments section , letters the editor, twitter/X

Question 3

Mitchell v Sprott (2001) 👶 🛏️

Answer 3

Facts: Dr Mitchell wrote an article in the NZ Herald about Dr Sprott, and Sprott’s ‘tactics aimed at shutting down debate” surrounding the ‘toxic gas theory’

Question 4

What are the 4 requirements of honest opinion

Answer 4

1)The opinion must be obviously be an opinion and not a statement of fact

The opinion must be based on true facts:
- 2) The speaker must give some indication of the facts on which they are commenting
- 3) The facts on which the speaker relies on must be true

4) The opinion must be “genuinely” held

(there are exceptions to this defence listed in section 10-12 in the Defamation Act)

Question 5

1) The opinion must be OBVIOUSLY be an OPINION and not a statement of fact

Answer 5

“It must be clear on reading the passage…that the writer is merely presenting his/her opinion on a particular set of facts and not purporting to put forward another fact.”
Example: “I went to the restaurant the food was bad”

• “The jury does this by determining what the ordinary, reasonable reader would take from what has been published and possibly also other facts which are generally known at the time (Mitchell v Sprott 2002 👶 🛏️, NZCA).
• The speaker must make it clear that what they are presenting is a conclusion about a person based on identified facts (Mitchell v Sprott 👶 🛏️)
• “The jury needs to examine the** publication as a whole** and not just look at particular statements in isolation (TVNZ v Haines 📺👷‍♂️).

Defendant must show that it is an opinion - the defendant needs to show that the plaintiff’s pleaded meaning is an opinion.

Question 6

2) The opinion must indicate the facts on which it is based

Answer 6

(a technical req)
“The comment…must indicate, either expressly or implicitly, the facts on which the opinion is based. This is so the reader knows what the maker of the statement is commenting on and can make his or her own assessment.” (Karam v Parker)

Example: “John consistently asked out his junior employee, she isn’t interested. Frankly, he is a sleazy sexual harasser”.

Bare comments which do not give particulars of the alleged wrongdoing should not be actionable as such statements do not actually have much impact on reputation (Joseph v Spiller)
- someone has to indicate to the facts on which they are based is otherwise the audience has no idea what they are talking about

Question 7

3) The Facts being relied on must be true

Answer 7

The facts on which the opinion is based must be true (or not materially different from the truth – Mitchell v Sprott)

The defendant does NOT need to prove the truth of ALL the facts which are asserted in support of the opinion. There only needs to be ONE true fact.
(95% of all the facts can be wrong – if one is true)
- Section 11: Defendant not required to prove truth of every statement of fact

Question 8

4) The Opinion must be honest/genuine

Answer 8

Section 10 of the Defamation Act 1992 provides that the defendant has to show that the opinion expressed was his/her “genuine opinion”
It can be:
- Unfair
- Irrational
- strongly-worded
- Not reasonable

It no-longer defeats the honest opinion defence to show that the defendant was motivated by malice (out-ruled by section 12)

BUT if the comment is motivated by malice, then it is less likely to be regarded as genuinely/honestly held.

Likewise, if it is pure invective or abuse – just a random stream of abuse, it is less likely to be an genuinely held opinion