Defamation and Fair Comment

The law of defamation has always been significant in the sense that it operates to restrain unwarranted attacks on the reputation of a citizen. As, however, the spurt in disparagement actions in India over the last decade reveals, such actions have acquired considerable significance in commercial law in recent times, and it is consequently even more important to develop a clear and coherent framework. The English law on defamation is, in general, well developed, and the Supreme Court on 1 December handed down an important judgment clarifying one element in the ingredients of a defence (fair comment) that had proven controversial in both its existence and its scope. The judgment of the Court, for which Lord Phillips principally spoke, is reported as Spiller v Joseph and is available here.

Lord Phillips’ judgment, as always,[1] is a remarkably careful and comprehensive analysis of the authorities, and repays close study. For our purposes, it is sufficient to note that the immediate context for the case was uncertainty over the fourth of the five ingredients of the fair comment defence that Lord Nicholls had formulated in Tse Wai Chun Paul v Cheng, [2001] EMLR 777 (“Cheng”). The uncontroversial ingredients were that the comment must be on a matter in the “public interest”, that it must be recognisable as a comment, that it must be based on facts that are either true or privileged, and that the comment must be one that an honest man, no matter how prejudiced or obstinate, could have made. The fourth ingredient was stated to be:

“the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.”

In Spiller, the claimant was a member of musical acts that performed across England, and entered into contracts with the defendant whereby the defendant would promote it and arrange performances for a commission on the fee the claimant received. There was some dispute as to whether the claimant breached such a contract in 2005, but the simmering tension between the parties erupted in ugly fashion in 2007, when the defendant discovered that the claimant had agreed to perform a second time for a venue, in breach of a re-engagement clause that any subsequent performances with a venue would be arranged solely by the defendant. The defendant wrote to the claimant terminating the contract, to which the claimant responded in a lengthy email which said, inter alia,

“It appears you do not know the meaning of freelance, that is what all my shows are… You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms.”

The defendant promptly posted on an online forum a message that stated that it had been advised by the claimant that “contracts hold no water in legal terms”. Partly misquoting and partly incompletely quoting the email, the defendant went on to suggest that the claimant would not honour its legal obligations, and warned colleagues that they would be well advised to engage “professional” bands. The post stated that a contract had been breached, but provided no particulars, and did not indicate what contract had been breached. The claimants brought a defamation action, and sought to strike out the defence of fair comment on the basis of the fourth ingredient described above i.e. that the defendant had not indicated the facts on which the comment was made. Since there was substantial uncertainty as to and disagreement over the fourth ingredient, interlocutory proceedings went up all the way to the Supreme Court.

While it is impossible to briefly even summarise the result of Lord Phillips’ painstaking analysis of the authorities, from ¶¶32-98, it is useful to notice his observation (and Lord Walker’s) that the defence of fair comment originated in a social context where the principal concern was the scope of permissible criticism of art and literary work in England – naturally, neither an art work nor a literary work can be criticised without being identified. When, however, the defence was extended to individual speech in other contexts, it was still sometimes thought (notably Hunt v Star Newspaper) that the defence of fair comment was available only in relation to facts stated in the comment. The rationale for this requirement was said to be that it allows the reader to judge for himself whether the comment or the inference is warranted by the facts that are set out. It was, in some sense, a belief that a comment that otherwise lowers a man’s reputation may not have that effect if it is clear to the reader that it is unreasonable or unwarranted.  

Faced with this difficulty, the defendants simply argued that the fourth ingredient was formulated incorrectly, because it was contrary to the famous decision of the House of Lords in 1952 in Kemsley v Foot. It was also apparent that the rule in question had never been universally accepted. Readers of Jeffrey Archer’s Fourth Estate may find the facts of Kemsley v Foot familiar – a dispute over a savage attack on Lord Beaverbrook’s newspaper by Michael Foot. The defamation claim was itself confined to the title of the article – “Lower than Kemsley” – and the defendant relied on fair comment. Although there was clearly no express reference to the facts on which the comment was based, the House of Lords allowed the defence, apparently on the basis that a comment as to a public figure was sufficient identification. However, Lord Porter also noted that the defendant need not, in such circumstances, prove as true every fact on which the comment is based, provided he can prove atleast one – and this was taken to be an implicit rejection of the requirement that every fact must be stated in the first place. As Lord Phillips correctly explains in ¶94, that is not the case, for Lord Porter’s speech only states that the defendant need not set out every aspect of the matter on which his comment is based, and that he need not prove every fact subsequently pleaded in defence as true. However, Lord Phillips clarified that in one respect the fourth ingredient formulated was inconsistent with Kemsley – that readers must be in a position to evaluate the fairness of the comment for themselves. This was never more than dicta in some of the cases, and is likely, as Lord Phillips noted, to rob the defence of fair comment of “much of its efficacy” in an era where comment is more widely distributed more easily.

The final aspect of the case concerns law reform. The defendant argued that it was time for the Supreme Court to entirely recast the law on fair comment considering that the principles had been developed at a time when the internet and the pace of modern communication were unknown. While noting that there is a strong case for this view, and especially for abolishing trial by jury, Lord Phillips correctly declined this invitation to reform the law, holding that “in any event, the proposed reforms go beyond changes that could properly be made by this court in the orderly development of common law”. Indeed, it is perhaps this reluctance of judges to decide more than necessary or lightly modify long-standing doctrine – even to cater to changing social conditions – that makes the common law endure as a rational and stable system of private law, and English law among the most widely used systems of law in international commerce.

Another comment on the case is available here.

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[1] Another example is Lord Phillips’ masterly (albeit controversial) analysis of the doctrine of common mistake in Great Peace Shipping Ltd v Tsavliris Salvage.