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 comment, it would make no sense if those facts were not known to the defendant at the time. At the same time, asking the defendant to prove knowledge of each fact at a certain point in time might place an unfair burden on him. There was no direct authority, and the European Convention on Human Rights must now be allowed for: ‘the right to comment freely on matters of public interest would be far too circumscribed if it were a necessary ingredient of the English common law’s defence of fair comment that the commentator should be confined to pleading facts stated in the words complained of.’
As to the defence of fair comment: ‘As with any other defence, the first step is to identify the meaning of the words and then to consider whether the defence of fair comment has been made out.’
Eady J concluded: (1) Any fact pleaded to support fair comment must have existed at the time of publication.
(2) Any such facts must have been known, at least in general terms, at the time the comment was made, although it is not necessary that they should all have been in the forefront of the commentator’s mind.
(3) A general fact within the commentator’s knowledge (as opposed to the comment itself) may be supported by specific examples even if the commentator had not been aware of them (rather as examples of previously published material from Lord Kemsley’s newspapers were allowed).
(4) Facts may not be pleaded of which the commentator was unaware (even in general terms) on the basis that the defamatory comment is one he would have made if he had known them.
(5) A commentator may rely upon a specific or a general fact (and, it follows, provide examples to illustrate it) even if he has forgotten it, because it may have contributed to the formation of his opinion.
(6) The purpose of the defence of fair comment is to protect honest expressions of opinion, or inferences honestly drawn from, specific facts.
(7) The ultimate test is the objective one of whether someone could have expressed the commentator’s defamatory opinion (or drawn the inference) upon the facts known to the commentator, at least in general terms, and upon which he was purporting to comment.
Eady J
[2006] 3 All ER 357, [2006] EWHC 320 (QB), Times 29-Mar-2006, [2007] QB 580
Bailii
England and Wales
Citing:
CitedLucas-Box v News Group Newspapers Ltd; Polly Peck (Holdings) Plc v Trelford, Viscount De L’Isle v Times Newspapers Ltd CA 1986
Justification To be Clearly Set Out
The former practice which dictated that a defendant who wished to rely on a different meaning in support of a plea of justification or fair comment, did not have to set out in his defence the meaning on which he based his plea, was ill-founded and . .
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 . .
FollowedKemsley 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. . .
CitedLondon Artists Ltd v Littler CA 10-Dec-1968
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 . .
CitedBonnick v Morris, The Gleaner Company Ltd and Allen PC 17-Jun-2002
(Jamaica) The appellant sought damages from the respondent journalists in defamation. They had claimed qualified privilege. The words alleged to be defamatory were ambiguous.
Held: The publishers were protected by Reynolds privilege. The court . .
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 . .
CitedAlexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
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 . .
CitedReynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
CitedMerivale v Carson CA 1887
A published criticism of a play made reference to one of the characters being ‘a naughty wife’, though in fact there was no adulterous wife in the play.
Held: The defence of fair comment is open to a commentator however prejudiced he might be, . .
CitedMyerson v Smith’s Weekly 1923
(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 . .
CitedBranson v Bower QBD 15-Jun-2001
Eady J considered that: ‘Mr Price argues that the objective test for fair comment cannot be fulfilled (at any point) if the facts pleaded by the Defendant might take on a different significance when set against other facts not referred to in the . .
CitedGardiner v Fairfax 1942
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 . .
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 . .
CitedNilsen and Johnsen v Norway ECHR 25-Nov-1999
The court considered a complaint that the Norwegian defamation law interfered with the applicant’s freedom of speech, and placed an unfair burden of proof on them in defending themselves. One of the defamatory phrases under consideration was . .
CitedMcCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
CitedCampbell v Spottiswoode 1863
The plaintiff, a dissenting Protestant minister, sought to advance Christianity in China by promoting a newspaper with letters emphasising its importance. The defendant attacked him in a rival newspaper, saying his motive was not to take the gospel . .
CitedHickinbotham v Leach 1842
To a declaration for words, imputing to the plaintiff, a pawnbroker, that he had committed the unfair and dishonourable practice of duffing, that is, of replenishing or doing up goods, being in his hands in a damaged or worn-out condition, and . .
CitedJameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe Sprl (No 1) CA 26-Nov-2003
The court considered the levels of meaning in an article falsely connecting the claimant with terrorist activity: ‘Once it is recognised that the article may be asserting no more than that in one way or another the respondents may unwittingly have . .
CitedJoynt v Cycle Trade Publishing Co 1904
Kennedy J: ‘To sum it up, no doubt very imperfectly, it represents to my mind this – that the comment must be such that a fair mind would use under the circumstances, and it must not misstate facts, because a comment cannot be fair which is built . .
CitedHunt v Star Newspaper Co Ltd CA 1908
The defendant’s publication imputed to the plaintiff improper conduct in the discharge of his duties as a deputy returning officer at a municipal election. The defendant pleaded fair comment.
Held: The complaint related to allegations of fact . .
CitedUS Tobacco Inc v BBC 1998
. .
CitedBookbinder v Tebbitt 1989
The defendant charged the plaintiff with improperly spending andpound;50,000 on over-printing on local authority stationery the message ‘Support Nuclear Free Zones’.
Held: An attempt to plead as justification that the plaintiff had squandered . .
CitedSilkin v Beaverbrook Newspapers QBD 1958
The test of whether a comment amounted to fair comment, is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it. Diplock J said: ‘Let us look a little more closely at the way in which the . .
CitedCohen v Daily Telegraph CA 1968
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 . .

Cited by:
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 . .
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 . .

These lists may be incomplete.
Updated: 23 February 2021; Ref: scu.238929