Defamatory statements – Defences – Fair comment – Libel

Spiller & Anor v Joseph & Ors: SC (Lords Phillips (president), Rodger, Walker, Brown, Sir John Dyson): 1 December 2010

The second appellant company (E) appealed against a decision ([2009] EWCA Civ 1075, [2010] ICR 642) that it was not entitled to rely on the defence of fair comment in a libel action brought against it by the respondent members of a musical act (J).

E had promoted J’s shows for a time. A booking at the Landmarc Hotel which E had arranged had been cancelled by J shortly after it was made. A booking at Bibis Restaurant had resulted in a rebooking, which J arranged directly with the venue rather than through E, as was required by a re-engagement clause in the parties’ contract. E stopped representing J and published a posting on its website which contained a partially misquoted extract from an email sent by J to E. The posting stated that J were not professional enough to feature in E’s portfolio, and had not been able to abide by the terms of their contract. It also stated that ‘following a breach of contract’, J had advised E that the terms and conditions of contracts held no water in legal terms. The Court of Appeal held that the defence of fair comment should not be permitted to stand on the strength of the alleged breach of contract in relation to the Landmarc booking, as it had occurred 14 months before the alleged breach which had led to the publication. The court also held that the Bibis breach could not be relied upon, as the contract and the term allegedly breached had not been identified in the publication. In reaching that conclusion, the court relied on Lord Nicholls’ fourth proposition in relation to fair comment in Tse Wai Chun Paul v Cheng [2001] EMLR 31 CFA (HK), namely: ‘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 should be in a position to judge for himself how far the comment was well founded.’ E and the interveners, who represented newspaper and broadcasting interests, invited the instant court to develop the common law of fair comment, so that it was simplified and liberalised. E submitted that it did not matter that the readers of the posting had no knowledge of the facts in relation to the two breaches of contract referred to, and were unable to judge for themselves how far the comment was well founded. E argued that Lord Nicholls’ fourth proposition was inconsistent with the judgment in Kemsley v Foot [1952] AC 345 HL.

Held: (1) Lord Nicholls’ fourth proposition in Cheng could not be reconciled with Kemsley. Where adverse comment was made generally or generically on matters that were in the public domain, it was not a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves, Kemsley followed, Cheng explained and Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB), [2007] QB 580 considered. It was now possible for people to make public comment about others via the internet, and millions of people took advantage of that opportunity; it would often be impossible for readers to evaluate derogatory comments without detailed information about the facts that had given rise to the comments. If Lord Nicholls' fourth proposition were to apply, the defence of fair comment would be robbed of much of its efficacy. Lord Nicholls was not correct to require that the comment must identify the matters on which it was based with sufficient particularity to enable the reader to judge for himself whether it was well founded; however, the comment must identify at least in general terms what it was that led the commentator to make it. The fourth proposition should be rewritten as ‘next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it was based’ (see paras 90-105 of judgment).

(2) The reforms suggested by E and the interveners would radically alter the nature of the defence of fair comment, and would not necessarily serve to simplify defamation actions. The proposed reforms went beyond changes that could properly be made by the Supreme Court in the orderly development of the common law. There was, however, a case for reform, and the whole area merited consideration by the Law Commission, or an expert committee. The only reform that should be made by the instant judgment was one that had already received judicial approval in the case of Reynolds v Times Newspapers Ltd [2001] 2 AC 127 HL: the defence of fair comment should be renamed ‘honest comment’, Reynolds referred to (paras 110-117).

(3) E’s defence of fair comment should be reinstated. E could not rely upon the Landmarc breach to support the defence: the Landmarc breach was not referred to in the posting, nor did it form part of a generic allegation of misconduct. E could, however, rely on the Bibis breach: the posting sufficiently identified the breach as part of the subject matter of the comment, albeit that the breach was not particularised.

Appeal allowed.

David Price (solicitor-advocate) for the appellants; William Bennett (instructed by Pattinson & Brewer) for the respondents; Andrew Caldecott QC, Sarah Palin (instructed by Reynolds Porter Chamberlain) for the interveners.