Most parents have experienced the plaintive cry of ‘it’s not fair!’ hurled from the mouths of offspring made to tidy their rooms or deprived of the must-have of the moment.
But the words have also recently sprung from the lips of our judiciary and government ministers, at least in terms of the name of the longstanding defence to libel proceedings, fair comment, leading potentially to a tidied, new, and must-have, defence for the citizen publisher and media commentator.
Why fair comment?The defence of fair comment provides a greater degree of latitude for the publication of personal opinions and comments, recognising the vital role played by reviewers and commentators in a society where we cannot hope to go to every restaurant, see every film, read every book or digest every political or scientific argument.
The word ‘critic’ itself comes from the ancient Greek, meaning one who offers reasoned judgement or analysis, interpretation or observation. Not all observations will be positive and some can be positively vitriolic. (That said, not all will lead to litigation. The German composer Max Reger is said, as a result of a particularly critical review of one of his works, to have asserted his own right to free speech, retorting: ‘I am sitting in the smallest room of my house. I have your review in front of me. Soon it will be behind me.’)
RequirementsLord Nicholls of Birkenhead set out the outer limits of the defence of fair comment in the Hong Kong case of Tse Wai Chun Paul v Cheng  EMLR 31 CFA (HK):Importantly, the fifth proposition pushed aside the word ‘fair’ in favour of a requirement for honesty. Nicholls LJ said: ‘A comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred.’
- first, the comment must be on a matter of public interest;
- second, the comment must be recognisable as comment, as distinct from an imputation of fact;
- third, the comment must be based on facts which are true or protected by privilege;
- fourth, 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; and
- fifth, the 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.
Spiller was the first libel case to be considered by the Supreme Court and the first to reach the highest court since Jameel v Wall Street Journal  UKHL 44. It considered to what extent the facts on which the comment is based are required to be set out in the publication complained of, as required by Lord Nicholls’ fourth proposition in Cheng.
The claimant music band and its members had sued for defamation over a notice on the defendant agency’s website which alleged, they said, that they were ‘grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them’. The defence of fair comment had failed in the lower courts because, inter alia, the alleged breaches of contract on which the defendants sought to base their comments had either taken place long before the alleged breach which had promoted the alleged comment or had not been identified at all in the article complained of. Accordingly, it did not satisfy Lord Nicholls’ fourth proposition as the reader could not make up their own mind.
The points of principle that the court was asked to consider, were:Accepting the rule in Cheng in general terms, the Supreme Court unanimously held that the fourth proposition should be rewritten. Its first sentence was good, but its second sentence – ‘the reader or hearer should be in a position to judge for himself how far the comment was well founded’ – should be removed.
- whether the statement that ‘the comment must explicitly or implicitly indicate, at least in general terms, what the facts are on which the comment is being made’ is good law;
- whether the commentator has to know the facts at the time of publication; and
- the correct interpretation of section 6 of the Defamation Act 1952.
Lord Phillips explained that ‘the defence originated in respect of comments about work products such as: books, plays, theatrical performances, musical compositions and concerts. Comments in relation to such matters necessarily identified the work product to which they related, or they would have been meaningless… There was no doubt about the matter to which the comment related… No issue was likely to arise as to whether the comment was "fair", for beauty is in the eye of the beholder... The only issue was malice’ (paragraph 84).
The defence was later developed to also cover the conduct of individuals, where this was of public interest, which complicated the nature of the defence. Once it became possible to comment on the conduct of individuals, it was not always the case that this conduct was in the public domain and so it was necessary to indicate the facts on which the comment was being made.
Lord Phillips’ judgment set out that it was ‘fallacious to suggest that readers will be able to form their own view of the validity of the criticism of a matter merely because in the past it was placed in the public domain… this will not be possible where the criticism is of an ephemeral matter such as a concert, or the single performance of a play, or a football match, all of which can give rise to general criticism that is protected by the defence of fair comment’.
Phillips noted that, with millions of internet users posting derogatory comments online without detailed information about the facts that have given rise to the comments, evaluation by the reader is impossible: ‘If Lord Nicholls’ fourth proposition is to apply, the defence of fair comment will be robbed of much of its efficacy.’
Defamation Act 2012?Statutory reform has been proposed by the Ministry of Justice to the law of defamation, preceded by Lord Lester of Herne Hill’s private members’ Defamation Bill. The reworking of the defence of fair comment in the draft bill is consistent with the notion that the material relied upon need not be set out in the article itself, provided the facts upon which the opinion was based existed, and they are facts upon which an ‘honest person’ could form the same view as the defendant.
Lord Nicholls concluded in Spiller: ‘There is only one reform that I would seek to make by this judgment… The defence of fair comment should be renamed honest comment.’ Whether he will get his wish remains to be seen. Lord Lester proposes ‘honest opinion’ in his defamation bill; ‘honest comment’ was offered by Lord Nicholls in Spiller. One thing is for sure, there can be no further complaining that it’s not fair. It’s not – honestly.
Additional research/reporting by Natalie McEvoy, Withers