Publishers have to use the defence of Truth if they are sued for factual allegations, and Honest opinion for comments.
It can be difficult to work out which is which.
The simple rule is: If an article is predominantly made up of comment, then you will use honest comment. This applies things like reviews, letters, editorials, blogs and opinion columns.
But a court can decide that the offending words weren’t comment because they contained factual allegations. For instance, this statement is not a comment:
‘Cleland Thom is, in my opinion, a skilled conman.’
The statement is a factual allegation, despite including the phrase ‘in my opinion’.
At the start of an ‘honest opinion’ trial, the judge will decide if the words were actually comment, and not statements of fact.
How do you work it out? Legally, a comment is defined as: ‘A criticism, observation or remark.’
The easiest test is: A fact can be proved true or false. A comment cannot be.
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