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 qualified privilege provided that it is proportional and fairly relevant to the attack and the extent of its publication.
As to the question of extrinsic evidence it is necessary to inquire into the state of mind of the defendant at the time of the publication, and to evaluate all the circumstances surrounding its publication. This may include events before and after the publication
Fair comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. Grossly exaggerated language may be evidence of malice.
Lord Oaksey said: ‘If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize-fighter you are not bound to adhere to the Queensbury rules in your defence.’ and ‘He is entitled, if he can, to defend himself effectively, and he only loses the protection of the law if he goes beyond defence and proceeds to offence’. The word ‘honest’ should be substituted for ‘fair’ in the usual phrase ‘fair comment.’
Whether the words are capable of being a statement of fact or conversely are only capable of being seen as comment is an issue properly to be dealt with judicially.
Lord Porter said: ‘were a statement of fact, and the facts were untrue, a plea of fair comment would not avail and it is for the jury in a proper case to determine what is comment and what is fact, but a pre-requisite to their right is that the words are capable of being a statement of a fact or facts.’
Lord Porter, Lord Oaksey
 1 All ER 449
England and Wales
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, . .
Followed – Somerville v Hawkins 1851
It is necessary for a claimant who wishes to prove malice in an alleged defamation to plead and prove facts which are more consistent with its presence than with its absence. Mawle J said: ‘it is certainly not necessary in order to enable a . .
Cited – Telnikoff v Matusevitch CA 1991
The court considered the element of malice in a defamation defence: ‘If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge . .
Cited – Associated 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 . .
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 – Seray-Wurie v The Charity Commission of England and Wales QBD 23-Apr-2008
The defendant sought an order to strike out the claimant’s allegations of defamation and other torts. The defendants claimed qualified privilege in that the statements complained of were contained in a report prepared by it in fulfilment of its . .
Cited – Hughes v Risbridger and Another QBD 9-Dec-2009
The defendants, employees of British Airways, sought summary judgement against the claimant in his claim for defamation in several emails. They had discussed the detention of the claimant under suspicion of theft at the airport, and claimed . .
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 . .
Cited – Seray-Wurie v The Charity Commission of England and Wales CA 3-Feb-2009
The claimant appealed against the striking out of his claim for defamation in a reort prepared by the defendants criticising his actions as chairman of a CAB. The action had been struck out on the basis of qualified privilege, and the claimant’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2021; Ref: scu.240311