Damages for libel and the freedom of expression, rely upon distinct terms of meaning for their preservation or application. And so on this occasion, the subjective opinion of an industry insider becomes the target of a writ that while not uncommon, does little to protect the reputation of those evaluated.
Whilst writing a tabloid article, the appellant doctor wrote of the respondents:
“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.”
In retaliation, the respondents issued a writ for defamation on grounds that when publishing the article, the appellant had implied on the basis of fact, that the respondents lacked any credible evidence with which to support its claims. During the trial, the judge elected to apply a ‘fact’ based test, as opposed to one of subjective opinion, whereupon the jury found against the appellant and damages were set, along with injunctive remedy.
During the appeal, the Court reexamined the actions of the judge when choosing to adopt a factual premise upon which to rest the defence, while exploring the meaning of art.10 of the European Convention on Human Rights (Freedom of expression), with particular reference to De Haes and Gijsels v Belgium, in which the Court found that a journalist accused of libellous commentary was ultimately found to have merely expressed a ‘value judgment’ based upon collective facts relating to the field under discussion.
Here, the appellant had recently co-authored a book with an established authority on the history of chiropractic medicine, who had found through direct application of the methods common to chiropractic, that despite seventy experimental trials, there was no evidence to support the claims forwarded by the respondents, hence the commentary made within the article.
With these ‘facts’ in hand, the Court held that while honest in his intentions, the trial judge had erred in treating subjective opinion and reasoned commentary as statements of fact, and that by doing so had in essence contravened the rights contained under art.10, and reinforced the notion that challenges of those in authority were subject to punishment or forfeiture.
It was for this reason that the Court reversed the previous decision, while citing the words of Judge Easterbrook in Underwager v Salter, who had clarified how:
“[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 images – mark the path towards superior understanding of the world around us.”
While reminding the Court that language should not be used to distort, dilute or obscure the purpose of clarity when establishing liability for defamation or libel.
“[T]he material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”