The defendant newspaper pleaded, as matters on which its publication was alleged to be fair comment, facts that had occurred some weeks after the publication. These were struck out and the defendant appealed.
Held: The appeal failed. A defendant may not rely, for a plea of fair comment, upon facts post-dating publication, and a man may comment on existing facts without having them all in the forefront of his mind at the time.
Lord Denning said: ‘No ordinary human person can look into the future and comment on facts which have not yet happened’ and ‘In order to make a good plea of fair comment, it must be a comment on facts existing at the time. No man can comment on facts which may happen in the future. There is a passage in Gatley on Libel and Slander, 6th ed (1967), p 723 which goes further. It says: ‘The facts which the defendant seeks to prove as the basis of his comment must have been known to him when he made the comment.’ I do not know that I would go quite so far as that. A man may comment on existing facts without having them all in the forefront of his mind at the time. Nevertheless it must be a comment on existing facts.’
Russell LJ noted that counsel for the defendants did not dispute that ‘the facts on which the defence of fair comment is based can only be those known at the time of publication.’
Davies LJ discussed whether a defence of fair comment could be supported by facts which occurred later. He thought not: ‘There is a singular absence of English authority on this point, and it may be that the reason for that is that it is so obvious that authority is not required’. And ‘If it is necessary for the man making the comment to know the facts at the time he makes it, it follows as the night follows the day that it is impossible for him to rely on events which at that time had not happened.’
Judges:
Lord Denning MR, Russell LJ, Davies LJ
Citations:
[1968] 1 WLR 916
Jurisdiction:
England and Wales
Cited by:
Cited – Lowe 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 . .
Cited – Spiller and Another v Joseph and Others SC 1-Dec-2010
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 . .
Lists of cited by and citing cases may be incomplete.
Defamation
Updated: 11 June 2022; Ref: scu.240317
