Interpretation is opinion: realigning the fact/opinion distinction in English defamation law

Abstract

ABSTRACT Statements that interpret the words of others are – by their nature – interpretative. Their meaning is contingent and (inter)subjective; it is something that those who encounter those words or actions construct. As such, it makes little sense for the law to treat interpretative statements as purporting to set out provable facts. Yet English defamation law does precisely this. As a result, publicly criticising ambiguous words or actions that are put into the public domain by one person can cost a commentator dearly. This essay critiques the peculiarities of English defamation doctrine that have created this situation, arguing that all published statements that interpret or purport to interpret one or more earlier statements, whether expressly or impliedly, ought to be treated as statements of opinion. By adopting this approach, English defamation law can address an issue that has the potential to cause significant chilling effects on public discourse – particularly on social media.