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With new plans for libel reform, we look at the case that waved goodbye to fair comment, and hello to honest opinion

The case of Joseph v Spiller [2010] UKSC 53 has caused a stir in the world of defamation, and in particular with regards to the defence of what is currently known as “fair comment.”

In this case, the court decided the defence of fair comment needed updating in order to fit with the needs of today’s society and it was held to be no longer necessary for a reader to be “in a position to judge for himself how far the comment was well founded”. The appeal was allowed and with it, a new defence suggested, that of honest opinion.

The defence of fair comment in its current form was established by Lord Nicholls of Birkenhead, in the case of Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777, in which he outlined five different component parts to the defence, namely:

1) The comment must be on a matter of public interest
2) The comment must be recognisable as comment, distinguishable from an imputation of fact
3) The comment must be based on facts, which are true or protected by privilege
4) The comment must be 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
5) The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.

The case of Spiller signalled a change of stance in dealing with the amount of information to be provided to the prospective reader.

The case concerned a dispute between a Motown tributes band and a promotions site.

After a booking fell through, a post appeared on the company’s website stating that motown act The Gillettes “are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract”.

It was further stated that the group “may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties. Instead we recommend any of the following professional bands and artists.”

The posting remained active until April 2008, and it was alleged that it caused the band to lose bookings.

Lord Phillips told the court that in today’s society, it was no longer practical for the maker of a comment to have to set out the entirety of the basis for the same by way of justification. Taken further, it is arguable that if one was entitled to enforce a claim against everyone who did not set out the facts in full (thus enabling the reader to “judge for themselves”), there would be pandemonium. Instead, it was held that only general information need be mentioned, so as to provide context to the comment.

It did not require the reader to benefit from a full consideration of the surrounding circumstances in order to judge the merits of the comment.

Accordingly it was suggested that component 4) of Cheng be rewritten as: “The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”

The rewriting essentially removes the second limb of the original. If readers were required to be given full supporting information in relation to an event which had already occurred and to which they had not been privy, this would clearly stop any opinion about that event from ever being made. Would a musical critic be required to record and/or film a concert and then provide a link to the same in order to write a review of it, so as to justify their comments upon it? To do so would undoubtedly be onerous and arguably disproportionate.

Lord Phillips also suggested that the author of a comment should “show that he subjectively believed that his comment was justified by the facts on which he based it.”

The new defence flowing from the decision has been renamed “honest opinion”, following the lead of the New Zealand Defamation Act 1992. This term has subsequently been adopted by the draft Defamation Bill, which was published on March 15 for public consultation. This proposes abolishing the common law defence of fair comment for good so watch this space.

First published in the Young Lawyer section of Solicitors Journal Website March 2011

For further information contact Nigel West


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