Gill Phillips

Gill Phillips:

" Today's supreme court judgment has significant ramifications for the law on defamation

The defence of fair comment – which will now, according to the supreme court, be renamed 'honest comment' – in a defamation action is regarded by many as 'the bulwark of free speech'. While the supreme court agreed in its judgment this morning with the solicitor advocate for the defendants that the case was 'a storm in a teacup', they noted: 'The storm is considerable. It involves consideration of one of the most difficult areas of the law of defamation, the defence of fair comment.'

The importance of the defence should not be underestimated – it is not only confined to the media, as indeed the facts of the case indicate. In the modern global electronic age, it applies to the blogosphere, phone-in programmes, letters pages, review sections, and editorials, all of which brim with comment on a wide variety of issues. It applies equally to the spoken and to the written word.

Furthermore, it is a much maligned and misunderstood defence: the Faulks Committee in 1975 recommended that it be renamed 'comment' because the adjective 'fair' was 'seriously misleading' as in reality the defence protected 'unfair' comments.

The supreme court in Spiller has dealt, head on, with one of the many complexities and controversies that have bedeviled the fair comment defence in recent years and have highlighted that the whole area merits consideration by the Law Commission, or an expert committee.

The court recognised that the subjective nature of the defence of fair comment has diminished. The issue, they said, is no longer whether the defendant honestly believed that the facts on which he commented justified his comment. Instead, the focus has been on the objective question: could an obstinate and prejudiced person have honestly based the comment made by the defendant on the facts on which the defendant commented?

The court's clarification of the status of Lord Nicholls' fourth 'non-controversial' proposition (as set out in Tse Wai Chun Paul v Albert Cheng in 2001) is very welcome. It is not necessary, they said, that a comment must identify the matters on which it is based with sufficient particularity to enable the reader to judge for himself whether it was well founded. However, the court held 'the comment has to identify, at least in general terms, the matters on which it is based' so that 'the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did'. The court also made clear that a defendant was not permitted to rely in support of the defence of fair comment on matters that were not referred to, even in general terms, by the comment.

This will be helpful in practice, although there is no doubt still room for debate over what is meant by a 'general indication' of the reasons for reaching a comment, as opposed to what is meant by 'detail'.

While the court agreed to a small bit of modernisation in stating that the defence should be renamed 'honest comment', and acknowledged that there was a case for reform so as to simplify the defence, and so as to remove the requirement that it be in the public interest, the court did not accept suggestions that the defence should be expanded to embrace facts which were not known to the defendant, or even in existence when he made his comment. Rather they suggested that the onus should be on a defendant to show that he subjectively believed that his comment was justified by the facts on which he based it.

Somewhat worryingly, the court questioned, in relation to a statement that mixed fact and comment, how often any value was added to a defendant's case by the addition of a plea of fair comment.

Finally, and probably most fundamentally, the court posed this question: 'Has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre-empt issues from going before the jury.'

The facts

The claimants were members of the musical acts 'The Gillettes' and 'Saturday Night at the Movies'. The defendants were promoters. In 2004, it was agreed that the claimants' acts could be promoted by the defendants. Several performances were subsequently arranged by the defendants. The parties fell out over the terms of these arrangements. As a result, the defendant published on its website a posting which became the subject of the claim. The posting was accessible for six weeks between April and May 2007 when it was removed following a letter from Equity, the actors' union, on behalf of the claimants. In February 2008 the posting was inadvertently uploaded to a part of the defendant's site where it could be accessed and it remained there until April 2008. The posting was removed following a solicitor's letter on behalf of the claimants. In response to the commencement of proceedings, the defendants relied on defences of truth and fair comment. On 27 April 2009, just over one month before the date fixed for the trial, the claimants issued an application to strike out the defences. The judge declined to strike out the defence of justification but did strike out the defence of fair comment. The court of appeal upheld that decision and the defendant appealed to the supreme court.

In a unanimous decision, the defendant won their appeal and their defence of 'fair comment' was reinstated."