The new Supreme Court has considered its fi rst libel claim. In an unanimous decision, the court has decided that the defence of fair comment should be modifi ed, and renamed as “honest comment”. Lord Phillips also took the opportunity to call for jury trials in defamation to be abolished, and for other aspects of libel law to be reviewed.
The main issue before court in Spiller and another v Joseph and others1 was to what extent the defence of fair comment should require the factual basis of the comment to be set out within the words complained of. In the 2001 case of Cheng2 , Lord Nicholls had set out a number of propositions for the defence of fair comment. Under the fourth proposition, he stated the following:
“Next the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.”
The Supreme Court in Spiller has now re-written this proposition to read:
“Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”
The court reached its decision after a detailed analysis of the historical development of the fair comment defence, and an earlier decision of the House of Lords in Kemsley v Foot3. In Kemsley, the issue was whether the defence of fair comment could be maintained when the comment did not specify any particular matters to which it related. The House held that the defence of fair comment could be raised where the comment identifi ed the subject matter of the comment generically as a class of material that was in the public domain. There was no need for the comment to spell out the specifi c parts of that material that had given rise to the comment. The defendant could plead particulars of these in order to support the comment. Lord Porter held that it was not necessary to prove that each of these facts was accurate provided that at least one was accurate and supported the comment.
The Supreme Court held that in order to be protected by the defence of fair comment, the subject-matter should be suffi ciently stated, but not so that readers should be in a position to evaluate the comment for themselves. They said it was fallacious to suggest that readers will be able to form their own view of the validity of the criticism of a matter merely because in the past it was placed in the public domain, eg a play or a concert. The court decided that the subject-matter should be suffi ciently set out, but for the following reasons:
- Part of the justification of having a defence of fair comment is to allow one to comment freely on matters of public interest, if the subject matter of the comment is not apparent from the comment then this justification for the defence will be lacking
- The defence should be based on facts that are true. This is better enforced if the comment has to identify at least in general terms, the matters on which it is based.
- The same is true of the requirement that the defendant’s comment should be honestly founded on facts that are true.
- It is desirable that the commentator should be required to identify at least the general nature of the facts that have led him to make the criticism.
What does this mean?
In practice this means that comment does not have to identify matters on which it is based with suffi cient particularity to enable the reader to judge for himself whether it was well founded. The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment. The reader should understand what the comment is about and the commentator should, if challenged, give particulars of the subject matter in order to explain why he expressed the views that he did. A defendant may not rely in support of the defence of fair comment on matters that were not referred to, even in general terms, by the comment and he may not rely on a fact that was not instrumental in his forming his opinion.
The Supreme Court held that the defence of fair comment should be re-named “honest comment”. Lord Phillips also suggested potential areas of reform, either to be resolved judicially, by the Law Commission or an expert committee. These included the following:
- In place of an objective test, the onus should be on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it.
- The scope of the defence of fair comment should be widened by removing the requirement that it must be on a matter of public interest.
- Allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts. Therefore careful consideration should be given to whether the defence of fair comment should be extended to cover inferences of fact.
- Whilst fair comment can be based on a statement protected by Reynolds privilege, the commentator may well not be in a position to assess whether the statement in question is so protected.
- Defamation is no longer a field in which trial by jury is desirable. The issues are often complex and jury trial invites expensive interlocutory battles.