Kemsley 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 that he was a byword for poor journalism.
Held: Criticism of a newspaper owner as to the presentation of news by the paper was to be treated on a par with criticism of a book or play. The critic is not prevented from relying upon fair comment as a defence only because he does not particularise the conduct of which he complains. He need only state plainly the subject-matter of the complaint.
Birkett LJ said: ‘It is clear, therefore, and indeed it was not contended otherwise, that ALL the facts need not be stated, but when the matter is submitted to the judgment of a jury particulars of the facts relied on must be supplied’
and ‘I do not think it is possible to lay down any rule of universal application. If, for example, a defamatory statement is made about a private individual who is quite unknown to the general public, and he has never taken any part in public affairs, and the statement takes the form of comment only and is capable of being construed as comment and no facts of any kind are given, while it is conceivable that the comment may be made on a matter of public interest, nevertheless the defence of fair comment might not be open to a defendant in that case. It is almost certain that a naked comment of that kind in those circumstances would be decided to be a question of fact and could be justified as such if that defence were pleaded. But if the matter is before the public, as in the case of a book, a play, a film, or a newspaper, then I think different considerations apply. Comment may then be made without setting out the facts on which the comment is based if the subject-matter of the comment is plainly stated. This seems to me to accord with good sense and the true public interest.’
Somervell LJ identified two cases where a publisher may not be obliged to set out the factual basis of his comment in detail: where the subject matter was a work of art placed before the public for comment, and where the subject was a public figure subject in any event to vigorous discussion and where a detailed recital of the facts would be unwelcome. In contradistinction: ‘At the other end of the scale one may imagine a comment reflecting on the integrity of a subordinate official, whose activities had so far received no publicity, where it might be held that the defence was not available unless the facts relied on were substantially set out or indicated.’
Birkett LJ, Somervell LJ, Jenkins LJ
[1951] 2 KB 34, [1951] 1 TLR 197
England and Wales
ApprovedCarr 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 . .

Cited by:
Appeal fromKemsley 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. . .
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 . .
CitedAssociated 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 . .
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 . .
CitedSpiller 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 . .
CitedCook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.240314