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The Supreme Court yesterday handed down judgment in the case of Joseph v Spiller ([2010] UKSC 53), the first time it has considered a libel case since its inception. The panel consisted of Lords Phillips, Rodger, Walker and Brown and Sir John Dyson.  The background to the case has already been covered in a previous case preview on this blog and the background facts and the case history are not repeated in this post.

Despite branding the underlying dispute between the Motown Tribute Band “the Gillettes” and their entertainment booking service a “considerable … storm in a tea-cup”, the Supreme Court have broadened the scope and application of the defence of fair comment. The Supreme Court did so by reducing the burden formerly placed on defendants to identify facts they are commenting on with ‘sufficient particularity’. Lord Phillips also re-named the defence as “honest comment” (as opposed to Court of Appeal in BCA v Singh [2010] EWCA Civ 350, which favoured “honest opinion” [35]) and called on the Law Commission to consider and review the present state of the defence.

Background

The defence of fair comment is often thought of as one of the most complex areas of defamation law. The name itself is misleading and the principles of the defence lack clarity. They have been difficult to apply to the myriad of different types of circumstances in which the defence can be invoked, particularly in light of the digital age and revolution of blogging and online media. Part of the reason for this is the defence’s origins, which lie in times when Lord Walker says that the written word was only placed before and valued by “a relatively small educated and socially elevated class” [130]. Lord Walker acknowledged that the law needed to evolve to reflect and apply usefully to communications via modern media. Perhaps for these reasons the fair comment defence has become a hot topic for reform along with other areas of defamation law.

The Issues on Appeal

Two main issues arose on the appeal [31]. First: can defendants rely in support of a plea of fair comment on matters to which they made no reference in their comment? In this context, the Court considered Lord Nicholls’ fourth principle in Tse Wai Chun Paul v Albert Cheng ([2001] EMLR 777):

“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 hearer ought to be in a position to judge for himself how far the comment was well founded.”

The second issue considered was whether in the particular case the matters to which the defendants did refer in their comment were capable of sustaining a defence of fair comment.

The Judgment

In delivering the leading judgment (and re-instating the struck out defence of fair comment in the case) Lord Phillips conducted a full review of the authorities and concluded by endorsing Lord Nicholls’ summary of the elements of the defence in Tse Wai Chun Paul v Albert Cheng with one exception. He concluded that the fourth proposition could not be reconciled with the decision of the House of Lords in Kemsey v Foot ([1952] AC 345) and that

“where adverse comment is made generally or generically on matters that are in the public domain I do not consider that it is a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves” [98]

Nevertheless, Lord Phillips remained fo the view that the comment must identify, at least in general terms, what it is that has led to the commentator to make the comment [104].

As a result, Lord Phillips re-wrote Lord Nicholls’ the fourth proposition to read:

“.. the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”

The subject still needs to be identifiable but only now in “general terms”.

Lord Phillips went on to consider the general case for reform of this area of the law. He noted that the reforms proposed by the defendant (and the media interveners) which involved an objective test, “would radically alter the nature of the defence of fair comment” [110]

He also considered whether the defence could apply to inferences of fact. He considered the position in Strasbourg point but rejected its reasoning in favour of the reasoning of Mr Justice Eady. He makes the following observations:

“Jurisprudence both in this jurisdiction and at Strasbourg – see Nilsen and Johnsen v Norway (1999) 30 EHRR 878, para 50 – has held that allegations of motive, which is inherently incapable of verification, can constitute comment. Some decisions have gone further and treated allegations of verifiable fact as comment, see for instance the Privy Council in Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109. It is questionable whether this is satisfactory. Prejudiced commentators can draw honest inferences of fact, such as that a man charged with fraud is guilty of fraud. Should the defence of fair comment apply to such inferences? Allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts. Eady J has twice held that the defence of fair comment cannot apply where the defamatory sting is a matter of verifiable fact – Hamilton v Clifford [2004] EWHC 1542 (QB) and British Chiropractic Association v Singh [2009] EWHC 1101 (subsequently reversed by the Court of Appeal).” [114]

There were other observations made in the judgment on the subject of reform of fair comment and libel laws more generally such as widening the scope of the defence of “honest comment” by removing the public interest requirement [113]. However most notable were Lord Phillips’ comments at [116] on juries in defamation trials and his suggestion that now could be the time to remove them, given that defamation cases often involve complex issues, too complex for juries, and juries themselves invite expensive interlocutory battles.

In relation to reform, Lord Phillips concluded that

“These are difficult questions. Some may have to be resolved judicially, but the whole area merits consideration by the Law Commission, or an expert committee”. [117]

Comment

The Supreme Court’s judgment presents a helpful simplification of this principle of the law of fair comment. It may, however, be necessary to have further clarification as to the meaning of “general terms” in future cases. Lord Phillips did attempt to go some way towards defining this term in the judgment by providing the example of a man who writes that “a barrister is a disgrace to his profession” in so doing Lord Phillips says that he should make it clear why he has reached that conclusion whether it be because “he does not deal honestly with the court, or does not read his papers thoroughly, or refuses to accept legally aided work, or is constantly late for court, or wears dirty collars and bands”. [103]

The judgment has gone some way to clarify what the defendant needs to show if he wants to use the defence of “honest comment”. It has also extended the potential application of the defence for the defendant whilst retaining and ensuring an element of protection remains for the claimant.

The judgment has also raised many interesting issues which are ripe for reform. It will be interesting to see whether the application of the new defence broadens its application in practice – will the media and online communities and bloggers see this as an opportunity to hide behind more robust commentary?

It is interesting to note that Supreme Court made no reference to 2010?s other leading “fair comment” case – BCA v Singh ([2010] EWCA Civ 350). Lord Phillips makes a passing reference to the first instance decision in that case, noting in parenthesis “(subsequently reversed by the Court of Appeal)” – but does not otherwise mention the Court of Appeal’s judgment. As already mentioned, he ignores that Court’s view that the defence should be renamed “honest opinion”, favouring instead, “honest comment”

The final point is that the Supreme Court appears to have entered gently into political arena. Lord Lester’s Libel reform bill was proposed and then withdrawn on assurances from the coalition government that they would introduce a consultation and new bill. The Supreme Court has suggested the alternative course of the Law Commission or an expert committee. It seems unlikely that this suggestion will be taken up by Government.

This post originally appeared on the Inforrm blog and is reproduced with permission and thanks.