Associated Newspapers Ltd v Burstein: CA 22 Jun 2007

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 said: ‘It is unusual for this court to overturn a judge who has ruled that a defence of fair comment may not succeed and that the matter should be left to a jury to determine. These matters are generally for a jury to decide, so long as it is properly open to them as a matter of law to decide one way or the other. But if this court is firmly of the view that only one answer is available to any reasonable jury and that the defence of fair comment must succeed, then it is the court’s duty so to rule. Anything else would not be judicial self-restraint but an abdication of judicial responsibility. As will be apparent, I have concluded that the words complained of do amount to fair comment on a matter of public interest and that they are not capable of being held to fall outside the scope of that defence.’ and
‘the words complained of were contained in a review by a critic, as any reader would appreciate, and which the reader will expect contain a subjective commentary by the critic. The words also embody, quite obviously, powerful elements of value judgments – the word ‘heroic’ in itself does that . . such value judgments are not something which a writer should be required to prove are objectively valid, as the Strasbourg Court has pointed out when dealing with the Article 10 right’
Waller LJ, Keene LJ, Dyson LJ
[2007] EWCA Civ 600, [2007] EMLR 21, [2007] EMLR 571, [2007] 4 All ER 319, [2001] 1 WLR 579
England and Wales
CitedJones v Skelton PC 1963
(New South Wales) Lord Morris of Borth-y-Gest discussed how words subject to a claim in defamation should be read: ‘In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as . .
CitedLowe v Associated Newspapers Ltd QBD 28-Feb-2006
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 . .
CitedLewis v Daily Telegraph Ltd HL 1964
Ascertaining Meaning of Words for Defamation
The Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of . .
CitedPatterson v ICN Photonics Ltd CA 13-Mar-2003
The Court considered its own power to intervene in a defamation case to look at the meanings found by the judge hearing the case. The established principles ‘do not, however, prevent this court from intervening in an appropriate case, where it is . .
CitedBerezovsky and Glouchkov v Forbes Inc and Michaels CA 31-Jul-2001
The claimant sought damages from the defendant for a magazine article claiming that he was involved in organised crime in Russia. The defendants appealed against the striking out of elements of the defence suggesting lesser meanings. Was meaning a . .
CitedControl Risks v New English Library CA 1989
In a defamation claim, there is a parallel to be drawn between what is necessary in respect of the defence of justification and what is necessary where the defence of fair comment is raised. Where justification is pleaded, a defendant is required to . .
CitedTse Wai Chun Paul v Albert Cheng 13-Nov-2000
(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 . .
CitedGillick v British Broadcasting Corporation and Another CA 19-Oct-1995
Words which were broadcast were capable of meaning that the Plaintiff’s behaviour had contributed to deaths. She was a campaigner against the giving of contraceptive advice to young girls.
Held: The statement was defamatory. The full test was: . .
CitedClarke v Norton 1910
(Victoria) The court considered what was fair comment: ‘More accurately it has been said that the sense of comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.’ . .
CitedTurner v Metro-Goldwyn-Mayer Pictures Ltd (MGM) HL 1950
A letter was published which criticised a film critic’s review of the week’s films.
Held: A person (including a corporation) whose character or conduct has been attacked is entitled to answer the attack, and the answer will be protected by . .
CitedBranson v Bower (No 1) CA 24-May-2001
The test of whether comment was fair comment is simply that of whether the opinion was honestly expressed, and on the basis of facts accurately stated. There is no special rule for imputations of corruption or dishonest motives. Nor is there any . .
CitedCarr v Hood QBD 1808
Lord Ellenborough said: ‘it is not libellous to ridicule a literary composition, or the author of it, in so far as he has embodied himself with his work.
Every man who publishes a book commits himself to the judgment of the public, and anyone . .
CitedTabart v Tipper 2-Jan-1808
The plaintiff said that the defendant had libelled him by saying that he was in the habit of publishing immoral and foolish books.
Held: It was open to a defendant denying the libel to establish through evidence that the criticism was fair. . .
CitedKemsley v Foot CA 14-Dec-1950
Pleading of Fair Comment Defence
The plaintiff newspaper proprietor complained that the defendant had defamed him in a publication ‘The Tribune’ with a headline to an article ‘Lower than Hemsley’ which article otherwise had no connection with the plaintiff. He said it suggested . .
CitedKemsley v Foot HL 25-Feb-1952
Fair Comment Crticism of Newspaper Publisher
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 Kemsley’ was defamatory. The defendant pleaded fair comment. The plaintiff appealed. . .
CitedTelnikoff v Matusevitch HL 14-Nov-1991
The court should decide on whether an article is ‘fact or comment’ purely by reference to the article itself, and not taking into account any of the earlier background coverage. It is the obligation of the relevant commentator to make clear that the . .

Cited by:
CitedThornton v Telegraph Media Group Ltd QBD 12-Nov-2009
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 . .
CitedCaborn-Waterfield v Gold and Others QBD 11-Mar-2013
The defendants requested a preliminary ruling that the words complained of in the claimant’s action were not capable of bearing a defamatory meaning.
Held: Some of the pleaded meanings were not supported, but others were clearly defamatory, . .

These lists may be incomplete.
Updated: 03 February 2021; Ref: scu.253548