Media law

By Amber Melville-Brown, Schilling & Lom and Partners, London

Fair's fair - or is it?

Revitalisation of the fair comment defence in defamation cases

The name by which the defence of fair comment is known is 'misleading'.

'Comment, or honest comment, would be a more satisfactory name.' So said Lord Nicholls of Birkenhead, in Cheng v Paul in the Hong Kong final Court of Appeal, the first of a number of recent cases that have added some clarification to this defence.

At IBC's conference on 'Protecting the Media', Heather Rogers of Matrix Chambers highlighted these various cases and predicted that the clarification may bring this defence out of the text books and back into the defamation courts.

A defendant wishing to rely on the defence must successfully drive his 'comment' over a number of hurdles.

He must show that the comment relates to subject matter that is of public interest; that it is comment and not fact; that it is based on stated facts which are true or protected by privilege; and that it is 'fair'.

Although none of these hurdles is easy to overcome, the position is aggravated further in that the defence can be defeated by malice.

What has caused confusion in this regard, is both the nature of this malice and the definition of what is 'fair'.

Malice in fair comment cases has historically been understood to be spite, ill-will, recklessness as to the truth or some ulterior or improper motive; the same malice as would defeat a defence of qualified privilege.

However, can this apply in cases of fair comment? If it is accepted that a comment gets over the first hurdle of fairness, how can it fall at the fence of malice? If a publisher is found to have acted maliciously, surely his article was not 'fair' in the first place?

Lord Justice Nicholls provided helpful clarification in the case of Cheng v Paul, stating that 'the time has come to recognise that the epithet "fair" is now meaningless and misleading.' He continued: '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 honestly hold the view that 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 sole or dominant motive, does not of itself defeat the defence.'

His reasoning was that 'the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury.' So if that crank or enthusiast publishes allegations that a claimant finds offensive and exaggerated, prejudiced and obstinate, but that crank or enthusiast honestly believes them to be true, he could avail himself of the defence of fair comment.

It would seem that this definition is being followed by subsequent cases, evidenced by the decision of Mr Justice Eady in Sugar v Associated Newspapers.

The jury had been sworn in and sent away while a number of preliminary applications were heard, including 'the purposes of fair comment, as that is now understood, and as it should be applied consistently with the requirements of article 10 of the European Convention on Human Rights.'

Mr Justice Eady specifically drew a distinction between the malice which defeats a defence of qualified privilege and that which would defeat fair comment.

He described these two defences as 'independent forms of life although of common origin'.

The former defence is to protect defamatory allegations 'in an infinite variety of circumstances which call for frank exchanges to be protected'; the latter protects 'the honest expression of comment or opinion on matters of public interest', which is 'fundamental to the functioning of any free and democratic society.'

In accepting Lord Nicholls' proposals on the defence, Mr Justice Eady said: 'Fair comment is one of the means adopted in this jurisdiction in our attempts to comply with the public policy objectives nowadays embodied in article 10 of the European Convention on Human Rights.

It is important, therefore, that it should not be construed in a way that would be unnecessarily restrictive of freedom of speech and thus inhibits people from making comments on matters of public interest.'

A willingness to construe words as comment - thus attracting the defence - and not as fact, was also shown by the court and the Court of Appeal in the case of Branson v Bower, relating to an article which referred to Richard Branson's alleged motivation for bidding to run the national lottery.

Despite the fairly forthright statement made, the court found that the reader would understand the defendant to be expressing his own opinion.

David Sherborne, specialist libel counsel at London media and entertainment chambers5 Raymond Buildings, says: 'The defence of fair comment is much more to the fore now, due to the respect accorded to the Strasbourg jurisprudence which recognises the distinction between value judgments and statements of fact.'

But this is not all good news for defendants.

While honesty may be the touchstone, motive and malice are not entirely irrelevant.

A malicious intent, an ulterior motive, an improper reason for making the statement - while not immediately depriving the defendant of the defence - may be used in evidence that the defendant did not have the requisite honest belief in what he published.

It is a requirement that the comment must be based on facts that are true.

The clarification in the test to be applied does not give carte blanche to journalists to publish allegations that they cannot prove to be true, simply by alleging that they honestly believe them to be true.

A defendant will be sadly disappointed if he thinks that the defence allows him simply to express the intended allegation as comment and then cherry-pick those facts he can prove to be true to back up his assertions.

While Mr Justice Eady accepted in Sugar that the defence did not require a defendant to publish a balanced account of a matter, he warned that if a journalist cited a wholly unrepresentative selection of facts on which to base his comment, 'he may run the risk of being found to be dishonest if he is aware of other facts which, if set alongside those selected, would make it clear that he was not expressing an honest opinion.'

So, the defence of fair comment comes down to honesty.

A jury must decide whether the statement was one of fact or comment, was a view honestly expressed and was based on facts which are true.

It would appear that, after all, honesty is the best policy.