Distinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.
