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On appeal from: [2009] EWCA Civ 1075

The Supreme Court was required to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated. The Supreme Court unanimously allowed the appeal, holding that the defence of fair comment should be open to the appellant entertainment booking service. The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong case of Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777. His fourth proposition, namely that the comment must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded, had attracted criticism and was challenged by the appellants. Lord Nicholls’ requirement, that readers should be in a position to evaluate the comments for themselves, could not be reconciled with the authorities. This was so, even where the subject matter was not within the public domain. Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment. The fourth proposition should be re-written as follows:

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

For judgment, please download: [2010] UKSC 53
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII