References: [2001] EMLR 777, [2000] 3 HKLRD 418, [2000] HKCFA 35
Links: hklii
Coram: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘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’ and
‘The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree’.
The defence of honest comment is available even if the comment was made with intent to injure, as where a politician seeks to damage his political opponent.
The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate the facts on which the comment is based, and ‘must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.’
This case cites:
- Cited – Myerson -v- Smith’s Weekly ((1923) 24 SR (NSW) 20)
(New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . . - Cited – Gardiner -v- Fairfax ((1942) 42 SR (NSW) 171)
Complaint was made that the plaintiff had been libelled in the defendant’s book review.
Held: A publication is defamatory in nature if it ‘is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the . . - Cited – London Artists Ltd -v- Littler CA ([1969] 2 QB 375, [1968] 1 WLR 607, Bailii, [1968] EWCA Civ 3, [1969] 2 All ER 193)
The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . . - Cited – Kemsley -v- Foot HL ([1952] AC 345)
The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Hemsley’ was defamatory. The defendant pleaded fair comment.
Held: The article . .
This case is cited by:
- Cited – Keays -v- Guardian Newspapers Limited, Alton, Sarler QBD (Bailii, [2003] EWHC 1565 (QB))
The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . . - Cited – Panday -v- Gordon PC (Bailii, [2005] UKPC 36, PC)
(Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
Held: The appeal failed. The statements were . . - Cited – Lowe -v- Associated Newspapers Ltd QBD ([2006] 3 All ER 357, Bailii, [2006] EWHC 320 (QB), Times 29-Mar-06, [2007] QB 580)
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . . - Cited – Associated Newspapers Ltd -v- Burstein CA (Bailii, [2007] EWCA Civ 600, [2007] EMLR 21, [2007] EMLR 571, [2007] 4 All ER 319, [2001] 1 WLR 579)
The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
Held: The appeal succeeded. Keene LJ . . - Cited – Blackwell -v- News Group Newspapers Ltd and others QBD (Bailii, [2007] EWHC 3098 (QB))
The claimant sought damages saying that a newspaper article published by the defendant was defamatory. He was the manager of Leeds United Football club, and was said to have lost the dressing room.
Held: The claimant was entitled to summary . . - Cited – CC -v- AB QBD (Bailii, [2006] EWHC 3083 (QB), [2007] EMLR 11, [2007] Fam Law 591, [2007] 2 FLR 301)
The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . . - Cited – Thornton -v- Telegraph Media Group Ltd QBD (Bailii, [2009] EWHC 2863 (QB))
The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . . - Limited – Spiller and Another -v- Joseph and Others SC (Bailii, [2010] UKSC 53, UKSC 2009/0210, SC Summary, SC, [2010] WLR (D) 310, WLRD, [2010] 3 WLR 1791, Bailii Summary, [2011] 1 All ER 947, [2011] ICR 1, [2011] EMLR 11)
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
