Merivale 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, and however exaggerated or obstinate his views. The test in literary criticism isdifferent from that in relation toa personal attack on an individual.
Bowen LJ said: ‘Still there is another class of cases in which, as it seems to me, the writer would be travelling out of the region of fair criticism – I mean if he imputes to the author that he has written something which in fact he has not written.
That would be a misdescription of the work. There is all the difference in the world between saying that you disapprove of the character of a work, and that you think it has an evil tendency, and saying that a work treats adultery cavalierly, when in fact there is no adultery at all in the story. A jury would have a right to consider the latter beyond the limits of fair criticism.’
After citing Campbell, Lord Esher MR asked what was meant by ‘fair comment’ and answered: ‘What is the meaning of a ‘fair comment’? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work . . Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all.’

Lord Esher MR, Bowen LJ
(1887) 20 QBD 275
England and Wales
Citing:
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 . .

Cited by:
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 . .
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 . .
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 . .
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 . .
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 . .
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 . .
CitedRobins v Kordowski and Another QBD 22-Jul-2011
robins_kordQBD11
The claimant solicitor said he had been defamed on the first defendant’s website (‘Solicitors from Hell’) by the second defendant. The first defendant now applied to set aside judgment entered by default. The claimant additionally sought summary . .

Lists of cited by and citing cases may be incomplete.

Defamation

Leading Case

Updated: 09 November 2021; Ref: scu.240312