Kemsley 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. An application on the RSC Order 19 rule 27 and RSC order 25 rule 4 was made to strike out this defence, on the ground that it could not succeed, because no facts appeared in the article to support the statement in the headline. The Court was asked whether a plea of fair comment is only permissible where the comment is accompanied by a statement of facts upon which the comment is made and to determine the particularity with which the facts must be stated.
Held: The appeal failed. In order to admit a plea of fair comment it was unnecessary that all the facts on which the comment was based should be stated in the alleged libel. Here a sufficient substratum of fact was to be implied from the words, viz that the plaintiff was responsible for the Press of which he was the active proprietor. The criticism was that the press was low and any facts sufficient to justify that statement would entitle the defendant’s to succeed. Failure to establish all the facts given in the particulars of defence would not necessarily disentitle them to succeed.
The article could be construed to infer that the Kemsley Press was of a low and undesirable quality and that Lord Kemsley was responsible for its tone. That was an inference which could be drawn from the three words ‘Lower than Kemsley’. The facts relied upon by the defendants in their pleading to support that brief comment consisted of ‘excerpts from the plaintiff’s newspapers and allegations of certain respects in which they were inaccurate or untruthful together with complaints of their tone and the impropriety of their methods of dealing with the news in them, even when it was accurate’. The defendant was entitled to rely upon such material.
Lord Porter said: ‘The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6th ed, 1929), at p.166. ‘Sometimes, however,’ he says, ‘it is difficult to distinguish an allegation of fact from an expression of an opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that ‘such conduct is disgraceful,’ this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact’.
‘if an author writes a play or a book or a composer composes a musical work, he is submitting that work to the public and thereby inviting comment.’
Lord Porter: ‘In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject-matter of the comment but facts alleged to justify that comment.
In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is the low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars but only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendants’ plea’.
Lord Tucker: ‘I also desire expressly to state my concurrence in [Lord Porter’s] opinion that where the facts relied on to justify the comment are contained only in the particulars it is not incumbent on the defendant to prove the truth of every fact so stated in order to establish his plea of fair comment, but that he must establish sufficient facts to support the comment to the satisfaction of the jury’.
Lord Oaksey said: ‘The forms in which a comment on a matter of public importance may be framed are almost infinitely various and, in my opinion, it is unnecessary that all the facts on which the comment is based should be stated in the libel in order to admit the defence of fair comment. It is not, in my opinion, a matter of importance that a reader should be able to see exactly the grounds of the comment. It is sufficient if the subject which ex hypothesi is of public importance is sufficiently and not incorrectly or untruthfully stated. A comment based on facts untruly stated cannot be fair. What is meant in cases in which it has been said comment to be fair must be on facts truly stated is, I think, that the facts so far as they are stated in the libel must not be untruly stated.’
Lord Porter said also: ‘Not all the public will see or read or hear it but the work is public in the same sense as a case in the Law Courts is said to be heard in public. In many cases it is not possible for everyone who is interested, to attend a trial, but in so far as there is room for them in the court all are entitled to do so, and the subject-matter upon which comment can be made is indicated to the world at large.’

Lord Porter, Lord Tucker, Lord Radcliffe, Lord Goddard CJ, Lord Oaksey
[1952] AC 345
England and Wales
Appeal fromKemsley 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 . .
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 . .

Cited by:
CitedKeays v Guardian Newspapers Limited, Alton, Sarler QBD 1-Jul-2003
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 . .
CitedGeorge Galloway MP v The Telegraph Group Ltd CA 25-Jan-2006
The defendant appealed agaiunst a finding that it had defamed the claimant by repeating the contents of papers found after the invasion of Iraq which made claims against the claimant. The paper had not sought to justify the claims, relying on . .
FollowedLowe 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 . .
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 . .
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 . .
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.


Leading Case

Updated: 01 November 2021; Ref: scu.184399