Commentary on the case of Martin Whyte v British Medical Association

The case

Dr Whyte is a junior doctor. He posted three tweets in 2017/2018 on the platform X (then known as Twitter) referencing Israel, Jews and Judaism. The British Medical Association (BMA) later argued in its summary judgment application that these included a call to boycott Israel, a representation of Jewish people in an antisemitic trope and highly offensive antisemitic language. 

In November 2022 Dr Whyte was elected Deputy Chair of the BMA Northern Regional Junior Doctors Committee. In April 2023 the Daily Mail contacted the BMA and asked for its comments on Dr Whyte's tweets in light of his role as Deputy Co-Chair, by which the Daily Mail said that he was "supposedly responsible for conduct and ethics". The BMA and Dr Whyte promptly had discussions about the tweets, and Dr Whyte was asked to resign from his position.

Later the same day, the BMA sent an email out to its 61,000 junior doctor members describing Dr Whyte's comments as "deeply troubling", "anti-Semitic" and "totally unacceptable". It also stated:

"We were not aware of these comments, nor of any anti-Semitic views. Any form of anti-Semitism is inexcusable. We strive to be a tolerant, diverse and progressive organisation. We want to assure members that we treat anti-Semitism and all forms of prejudice and discrimination with the utmost seriousness.

As soon as this information came to light, Dr Whyte was immediately removed from all BMA activities and has subsequently resigned from the UK JDC".

It was this email that prompted Dr Whyte's defamation claim against the BMA. Dr Whyte's position was that his tweets were taken out of context, were not objectionable and the complaint was manufactured "as a tactic in the politics around the junior doctor's strike".

Summary judgment application

The BMA brought an application for reverse summary judgment, relying on the defence of honest opinion. Dr Whyte argued that his case had a real prospect of success on the question of whether an honest person could have believed his tweets were troubling and antisemitic and that his comments were, in fact, intended to call out hypocrisy and antisemitism.

The agreed status and meaning of the email

The parties were in agreement that the email was an expression of opinion and that it bore the following meaning of Dr Whyte, which was defamatory of him at common law:

“(a) The Claimant had posted comments online that were deeply troubling and anti-semitic

(b) His comments were unacceptable, prejudicial, discriminatory, and incompatible with holding office for the BMA”

The defence of honest opinion

Section 3 of the Defamation Act 2013 sets out the defence of honest opinion. The conditions to meet the defence include the following:

1. The statement complained of was a statement of opinion (s.3(1))

2. The statement complained of indicated, whether in general or specific terms, the basis of the opinion (s.3(2)), and

3. An honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was published (s.3(4)(a))

It was common ground between the parties that the first two conditions were satisfied. The critical issue before the Court in deciding the summary judgment application was the third condition: whether an honest person could have held the opinion in the agreed meaning of the email, on the basis of any fact which existed at the time the email was published. 

Dr Whyte, in his submissions, referred to the context of his tweets and submitted that the BMA must prove as an underlying fact that the tweets were antisemitic. However, the Court was not persuaded by this, holding that this approach treated the email as a statement of fact (rather than opinion) and the applicable defence as a defence of truth, rather than a defence of honest opinion

The BMA's submissions focussed on the relevant facts known to the BMA at the time of publication, including Dr Whyte's admission that he was responsible for the twitter account, that he had admitted posting the tweets, the context for the tweets so far as that was known, and Dr Whyte's inability to justify or contextualise the tweets when he was asked about them.

The Court took into account that the defence of honest opinion is wide, as an opinion may be capable of being held by an honest person even if it is not a reasonable or fair opinion to hold. As such, it is a "bulwark of free speech" and is a far less exacting defence for a defendant to establish than the defence of truth.

The Court found that an honest person was capable of understanding Dr Whyte's posts as antisemitic, and therefore could have formed the opinion expressed in the email. In doing so it held that the BMA only had to show that an honest reader could form the opinion that the tweets bore the agreed meaning, even if that honest reader was "grossly unfair or prejudiced".

As the Court held that Dr Whyte had no reasonable prospect of defeating the claim at trial, and there was no other compelling reason for the matter to proceed to trial, summary judgment was entered for the BMA.

Key takeaways

In this case the Court noted that if the email had amounted to a statement of fact that Dr Whyte was an antisemite, rather than a statement of opinion, such that it would have been necessary for the BMA to prove that Dr Whyte had no real prospect of defeating a truth defence, then the BMA's application for summary judgment might have been difficult to sustain. This case is, therefore, a reminder of the breadth afforded to defendants by the defence of honest opinion and the difficulties faced by claimants in defeating it, in contrast to the more exacting defence of truth.