Court of Appeal confirms High Court decision that statement in Government press release on tackling extremism in universities was opinion rather than fact

The claimant, Dr Salman Butt, was the Chief Editor of Islam 21C, a publicly accessible website which described itself as “articulating Islam in the 21st Century”. Dr Butt described himself as holding conservative, but not extremist, religious views. He also said that he had spoken at a number of universities at the invitation of student Islamic societies.

A press release, entitled “PM’s Extremism Taskforce: tackling extremism in universities and colleges top of the agenda”, issued by the Government in 2015, announced the coming into force of the revised “Prevent Duty Guidance” entitled “A new duty to stop extremists radicalising students on campuses….”.

The “Notes to Editors” at the end of the press release explained that the taskforce, named the Extremism Analysis Unit (EAU), had been established to “support all government departments and the wider public sector to understand extremism so they can deal with extremists appropriately”. Dr Butt was then listed as one of six people who had spoken at universities and who were “on record as expressing views contrary to British values”.

Dr Butt issued various claims against the Secretary of State for the Home Department, including a claim in defamation. He argued that the natural and ordinary meaning of the words in the press release meant and were understood to mean that he was “an extremist hate speaker who legitimises terrorism, is likely to radicalise students and from whose poisonous and pernicious influence students should be protected”.

The Secretary of State denied the claim and, in the alternative, relied on the defence of “honest opinion” under s 3 of the Defamation Act 2013.

Mr Justice Nichols agreed with Dr Butt, finding that, reading the press release as a whole, there was an obvious link between the words in the press release, which spoke of a number of events having been held at campuses in the UK featuring hate speakers, and the list of six speakers in the “Notes to Editors”. The press release as a whole characterised Dr Butt as a hate speaker and an extremist, Nichols J said.

However, Nichols J also found that the words complained of were opinion, not fact. Essentially, they amounted to an opinion on the views of Dr Butt, which were “on record”, i.e. were in the public domain. He said that the press release as a whole indicated in general terms the basis of the opinion and s 3(3) of the 2015 was therefore satisfied. Dr Butt appealed this aspect of Nichols J’s decision.

Dr Butt argued that the judge had erred in principle by holding that whether someone is a hate speaker is “necessarily a matter of opinion”; further he had wrongly failed to give consideration to the context in which the statement was published or how the statement would strike the ordinary reasonable reader.

Giving the lead judgment, Lady Justice Sharp did not agree with Dr Butt. She said that Nichols J had clearly been alive to the importance of context in considering whether a statement was opinion or not, as he referred to it on several occasions in his judgment.

Sharp LJ also agreed with Nichols J’s view that the statement about Dr Butt was, in its immediate and wider context, clearly an evaluative one. The EAU was not presented as a decision-making body, but an evaluative and informative one supporting Government departments, which had made an assessment of Dr Butt before the new relevant policy and guidance had been introduced. The exercise undertaken by the EAU was fundamentally evaluative in nature and this was how it would have struck the ordinary reader of the press release.

It was apparent from the press release that the “label” applied to Dr Butt essentially involved a two-stage process of evaluation by the EAU, assessing Dr Butt’s “on the record” views on religious, social, political and moral issues and then comparing this assessment against the yardstick of “British values”. The whole exercise was inevitably highly value-laden, particularly where the reader was not given an exhaustive definition of the yardstick of such values and where the partial definition was itself open textured.

Sharp LJ said that there might be circumstances where the content of a government press release was purely factual. However, governments have views and opinions and often express them publicly, she said. Whatever the expectations might be about the content of such a press release, what mattered was not the position in the abstract, but what was actually said, and how what was said about Dr Butt was presented.

Sharp LJ also said that even if the statement was proved to be factually true, this did not mean it was not also protected by honest opinion. In other words, the statement about Dr Butt would still be defensible as honest opinion, even if it were regarded as an inferential one of fact, rather than an evaluative judgment.

The appeal was dismissed. (Dr Salman Butt v The Secretary of State for the Home Department [2019] EWCA Civ 933 (6 June 2019) — to read the judgment in full, click here).