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 comment defence was re-instated. The phrase ‘honest comment’ should now be used to reflect the nature of the fair comment defence. The obiter description of the defence by Lord Nicholls in Tse Wai Chun that for the defence to succeed, sufficient particulars of the facts were to be provided, was not supported and should not be followed. It remained the case that the publisher must identify them in general and sufficiently to allow a reader to understand what the comment was about and what had led to it.
The court discussed the need for reform, possibly extending the scope of the defence, and for removing jury trials in defamation cases.
Judges:
Lord Phillips, President, Lord Rodger, Lord Walker, Lord Brown, Sir John Dyson, SCJ
Citations:
[2010] UKSC 53, UKSC 2009/0210, [2010] WLR (D) 310, [2010] 3 WLR 1791, [2011] 1 All ER 947, [2011] ICR 1, [2011] EMLR 11
Links:
Bailii, SC Summary, SC, WLRD, Bailii Summary
Statutes:
Defamation Act 1952 6, European Convention on Human Rights 10
Jurisdiction:
England and Wales
Citing:
At First Instance – Joseph and Others v Spiller and Another QBD 22-May-2009
. .
Appeal from – Joseph and Others v Spiller and Another CA 22-Oct-2009
The claimants, members of a rock band, alleged defamation by the defendants on their web-site. The defendants provided booking services. They said that the claimants were unreliable in failing to meet their contractual obligations. Their terms . .
Criticised – Myerson 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 . .
Cited – Slim v Daily Telegraph Ltd CA 1968
Courts to Settle upon a single meaning if disputed
The ‘single meaning’ rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear. The law of defamation ‘has passed beyond redemption by the courts’. Where in a libel action . .
Cited – Brent Walker Group plc v Time Out Limited CA 1991
The defendant published two articles with comment adverse to W. The plaintiff complained that this associated him and his company with violent organised crime. The defence to the defamation action said the words complained of were fair comment, and . .
Limited – Tse 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 . .
Cited – Cooper v Lawson 5-Nov-1838
Case for libel. The alleged libel stated that plaintiff, a tradesman in London became surety for the petitioner on the Berwick Election Petition, and stated himself, on oath, to be sufficiently qualified in point of property, when he was not in fact . .
Cited – Campbell v Spottiswoode 18-Apr-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 – 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. . .
Cited – 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, . .
Cited – Hunt 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 . .
Cited – 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 . .
Cited – Dakhyl v Labouchere HL 1908
(Note) The plaintiff complained of a publication by the defendant that he was a ‘quack of the rankest species’.
Held: Lord Atkinson said that a personal attack could form part of a fair comment on facts stated provided that it was a reasonable . .
Cited – McQuire v Western Morning News Co Ltd CA 1903
The paper had carried an article with a swingeing condemnation of a musical. It defended the defamation action claiming fair comment.
Held: Collins MR said that there was no evidence of actual malice, no personal imputations and no allegations . .
Cited – Sutherland v Stopes HL 1925
Dr Marie Stopes failed in her attempt to reverse the verdict against her in libel proceedings she had brought in relation to a book which criticised what it called her ‘monstrous campaign of birth control’ and opined, looking back to the events of . .
Cited – Adams v Sunday Pictorial Newspapers (1920) Ltd and Champion CA 1951
The court was asked whether interrogatories should be ordered in relation to the question of whether a defendant who was relying on the defence of fair comment had been activated by malice.
Held: Lord Justice Denning said: ‘The truth is that . .
Cited – Cohen 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 – London 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 . .
Cited – Brent Walker Group plc v Time Out Limited CA 1991
The defendant published two articles with comment adverse to W. The plaintiff complained that this associated him and his company with violent organised crime. The defence to the defamation action said the words complained of were fair comment, and . .
Cited – Telnikoff 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 . .
Cited – Reynolds 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 . .
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 . .
Puzzling – Aga Khan v Times Publishing Co CA 1924
. .
Cited – Nilsen 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 . .
Cited – Sorguc v Turkey ECHR 23-Jun-2009
Freedom of speech may be restricted in order to protect reputation where this is necessary in a democratic society to meet a pressing social need. Thus a test of proportionality has to be applied. In applying that test there is a significant . .
Cited – Karako v Hungary ECHR 28-Apr-2009
In an election campaign an opponent of the claimant politician had said in a flyer that he was in the habit of putting the interests of his electors second. The applicant accused his opponent of criminal libel, but the prosecutor’s office terminated . .
Cited – Jerusalem v Austria ECHR 27-Feb-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Not necessary to examine Art. 6-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; . .
Cited – Hrico v Slovakia ECHR 20-Jul-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award
There is little scope under . .
Cited – Lindon, Otchakovsky-Laurens and July v France ECHR 22-Oct-2007
ECHR (Grand Chamber) The court emphasised the public interest in protecting the reputation of those in public life. Regardless of the forcefulness of political struggles, it is legitimate to try to ensure that . .
Cited by:
Cited – Baturina v Times Newspapers Ltd CA 23-Mar-2011
The claimant appealed against directions given in her defamation action against the defendant. It had been said that she owned a house, and the defendant said that this was not defamatory. The claimant said that as the wife of the Mayor of Moscow . .
Cited – Cook 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 . .
Cited – Robins v Kordowski and Another QBD 22-Jul-2011
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 . .
See Also – Joseph and Others v Spiller and Another QBD 26-Oct-2012
. .
See Also – Joseph and Others v Spiller and Another QBD 20-Nov-2012
Costs after finding in favour of claimants but with merely nominal damages. Tugendhat J explained that his decision to award only nominal damages was because he had concluded ‘it would be an affront to justice if [the claimant] were to be awarded . .
Lists of cited by and citing cases may be incomplete.
Defamation, Human Rights
Updated: 27 November 2022; Ref: scu.426899
