There have been several recent cases and developments in the law of defamation that have affected the realm of permissible comment and opinion in publications, whether in the media or in a business context. In defamation law this is the defence of fair comment.
Fair comment is the implement of the law that protects the dissemination of ideas and opinions in society, whether disseminated in the personal, literary or artistic and corporate worlds, or in the general media itself.
It is expected, in light of Lord Lester’s Defamation Bill (the Bill) currently in the House of Lords, that there will be legislative changes made by the new coalition government that will pave a way to a new defence of honest opinion in defamation law, but what does this mean and how will it change the law (if the proposed changes are implemented) in practice? Will the new defence liberalise freedom of speech to new levels, providing publishers with a veil to stand behind and consequently affect the way individuals, employers and employees, and corporates can respond to negative press and go about their business? This article considers the changes that may be made to the defence of fair comment and explains the Bill, highlighting its potential affects on both the media and business.
Background to Fair Comment
It is vitally important that private individuals, professionals, companies and their personnel (from executives to communications representatives) should be free and able to express their ideas and opinions without unnecessary scrutiny. We also need the benefit of this right to receive opinions and draw on the comment and ideas of others. One way in which this intrinsic right is protected is through the ability of the individual to express their comments and ideas, and legitimately ‘comment’ on any subject of public interest with no threat of defamation proceedings. Although seemingly straightforward, the defence of fair comment to an action for libel is often criticised. Its critics say that it has, over time, gathered inconsistencies and become overly complex. So, how did it get to this stage and what is to be done about it?
One explanation is cases such as British Chiropractic Association v Singh [2010] EWCA 350 – a case brought by the British Chiropractic Association of Great Britain against Dr Simon Singh, a contributor to the Guardian’s comment pages. The Singh case thrust the defence of fair comment into the media spotlight as Dr Singh spent two years, and over £200,000, in defending the words he wrote in his column that criticised the practices of the BCA. Libel law’s critics were incensed that a medical and science professional could not comment on the merits of medical practices or healthcare professionals, or indeed drugs companies and their products, which they said demonstrated that libel law, as it is, stymied debate in the public interest. On appeal however, Singh won his case. Around the same time, GE Healthcare, a major medical drug company with a global presence, dropped its libel claim against Henrik Thomsen, a Danish radiologist who had criticised GE’s drug Omniscan in a lecture at Oxford University to fellow doctors. Thomsen’s allegations were based on his research and findings that linked the drug to severe and debilitating side effects.
It is exceptional cases like Singh’s, in the realm of interplay between the science and the law, that have provided a catalyst to making and reforming libel laws, and they are now considered ready for reform by the government. The reform of English libel law has been under such scrutiny that both the past government and the current coalition government have been considering the Bill for some time to address what are perceived as outdated laws. The Bill will please the law’s critics, though it remains to be seen whether the changes in the law will simplify the inconsistencies in the defence of fair comment or just mean that publishers will be able to hide behind a larger veil. Will the media, agents and their clients or companies who address their competitors publicly be able to dress up everything they say about private individuals, professionals, employees and businesses as comment?
current law
Before analysing the changes, it is helpful to consider the current law. Put simply, words that are fair comment on a matter of public interest are a defence to an action in libel or slander. The principles of the defence of fair comment were stated by Lord Nicholls of Birkenhead in Tse Wai Chun Pau v Albert Cheng [2001], para 16-21. These can be summarised as follows:
- The comment must be on a matter of public interest. Public interest is not to be confined within today’s narrow limits (see Lord Denning in London Artists Ltd v Littler [1969] at 391).
- The comment must be discernible and based on an identifiable set of facts. It should be distinguishable from the words and recognisable as comment. An inference from fact can also be comment as Lord Porter stated in Kemsley v Foot [1952]. If the inference is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Many fair comment cases have turned on the distinction between fact and comment (and this hurdle was the focus of the Singh litigation).
- The facts on which the comment is made must be sufficiently or substantially true, unless it is a comment on a privileged occasion. If facts on which comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.
- The comment must explicitly or implicitly indicate, at least in general terms, what the facts are on which the comment is being made. The reader or hearer should be in a position to judge for themselves to what extent the comment was well-founded.
- The comment must also be one that could have been made by an honest person, however prejudiced they might be and however exaggerated or obstinate their views.
- The burden of establishing that a comment falls within these limits lies with the defendant who wishes to rely on the defence.
These current principles allow leeway for a substantial amount of comment for media commentators and critics, permitting defamatory comments to be made so long as they are germane to the subject matter criticised (and are, of course, comment). So for instance, a critic or business competitor does not have to be reserved in denouncing what they disagree with in another’s business or work so long as they are dipping their ‘pen in gall for the purposes of legitimate criticism’ (see Jordan J in Gardiner v Fairfax [1942] at 174). At the outer limits of the defence, it is robust and protects strident defamatory comments. We have seen the current law protecting journalists and critics in many a case in the business libel context, for example, fair comment protected the journalist who labelled a professional tennis player the ‘world’s worst tennis pro’ (Robert Dee v Telegraph Media Group Ltd [2010]).
Sir Stelios Haji-Ioannou, the founder of the famous low-cost airline easyJet was recently libelled by his competitor, the head of Ryanair, who called him ‘Pinnochio’ and accused him of lying about easyJet flight times. He obtained a settlement from Ryanair following a defamation complaint. The comments could neither be justified nor treated as permissible comment. This instance shows how the law can work effectively when things get heated in a competitive business context. In essence, the defence of fair comment can be used as either a shield or a sword for businesspersons and entrepreneurs. In a contrasting case, in Branson v Bower [2001], Sir Richard Branson, the famous Virgin entrepreneur, sued the Evening Standard for an article that called into question his motives for making a bid to run the National Lottery. The Standard applied for a ruling that the words complained of were comment and not statements of fact – the judge agreed. Branson then appealed the decision. On appeal, the judge said that assertions relating to a person’s motive were capable of amounting to statements of fact depending on the context (which if untrue would have to be justified), but in this case the court said they were not and the journalist’s writing, which doubted Branson’s motive, was protected as comment.
In fact, on the whole, these recent cases do not tend to demonstrate a ‘chilling on free speech’, which it is now fashionable to talk of. Indeed, at the end of the day Dr Singh won his case and his scientific journalistic work was protected as comment. The multinational drug company GE Healthcare did not pursue Dr Thomsen for the comments made about their drug product; and Sir Richard Branson could not prevent the publication of statements questioning his motives for his bid for the National Lottery. So what are the real problems that are driving reform?
Problems
One of the major criticisms of the current defence is that by definition it lacks clarity. The use of the word ‘fair’ is in a sense misleading since it is only used in its restricted meaning. It is not intended, by mere use of the word, that there should be a liberal all-catching approach to what might be deemed as fair. Also, the defence is only defeated if malice is proved. However, confusingly, malice does not mean spite, hate or improper motive as it ordinarily does, but ‘without honest belief’. This has led many commentators to believe that the name of the defence should be changed or simplified to ‘honest opinion’ to reflect this.
Singh put a major part of the defence to the test, and the first instance decision showed the difficulty in discerning between fact and comment. The Court of Appeal concluded that the first instance judge had been wrong to find that Dr Singh’s words were fact, and that his accusation that the British Chiropractic Association had ‘happily promoted bogus treatments’ was a comment or opinion rather than a statement of fact, delivering some clarity on what may be classified as a ‘value’ judgement. Ultimately, the court held that Dr Singh’s statement was defensible as comment. Is it fair to say then that Singh exemplifies the problems with fair comment?
Joseph & ors v Spiller & anor [2009], is a recent music industry case concerning a dispute between a Motown tribute band and their former agent regarding allegedly defamatory statements made about the way the act handled their contracts. Joseph is significant as it has recently been referred from the Court of Appeal to the Supreme Court, for analysis of what ‘substantially true’ means in the context of facts in a fair comment defence. Does the defence fail if any of the facts are wrong? The focal issue on appeal is likely to concern whether the knowing inclusion of a false fact, in the words complained of, rendered the fair comment defence unsustainable. The Supreme Court is expected to rule on this in September, but for the moment the Bill has made proposals to deal with this issue.
Still as the law currently stands, facts must be ‘substantially true’ to be the basis for fair comment. This means that in cases where a justification defence fails, the claimant can still use a fair comment defence even though the fact that the justification defence fails now indicates that the publication is not true. Arguably this means that the defence should be tightened up for the use of defendants and not liberalised even more.
One true oddity that crept into the defence was whether both sides can rely on the same sets of facts known to each party, or perhaps not known to one party, when arguing a defence of fair comment. There was scope for a defendant to rely on facts that were not included in the publication, but the law was inconsistent on the parameters of this and the Bill seeks to deal with it.
Dr Singh’s criticism that fair comment as it stands provides justice at too great a cost is wholly justified but to say the case necessitates stringent libel reform on the defence of fair comment may be a step too far. Nevertheless, the Bill is in the House of Lords and changes are fast-anticipated. So what are those anticipated changes, and what do those who wish to protect their reputation from unscrupulous publications and commentators have to bear in mind?
The Bill
The second reading of the Bill took place in the House of Lords on 9 July 2010 and the changes to fair comment are set out in clause 3. One of the first areas the Bill aims to tackle is the very naming of the defence. The defence will follow in the footsteps of reform of libel laws in Ireland and be re-labelled a defence of ‘honest opinion’. It is hoped that this will clear up confusion about what the defence is about and what it really means.
So what does a publisher or commentator have to do to prove that they had an honest opinion?
The following key points are taken from the Bill and it is expected that any legislation will follow these proposed parts of the new defence quite closely:
- The comment will still have to be on a matter of public interest.
- The comment must be ‘opinion’. It is proposed by the drafters of the Bill that the opinion gateway is going to be whether the ‘ordinary person’ would reasonably consider the words to be opinion (however, because this involves an objective opinion, whether it will get rid of the problems with the problematic fact or opinion distinction in the current law remains to be seen in real life examples).
- What are you commenting on? The comment must be based on facts that turn out to be true, or privileged material. This means facts that turn out to be substantially true, ie not all the facts, must be true.
- Would an honest person form the opinion based on the proved facts in point 3?
- One clear oddity that the new Bill aims to remove is the debate about what the claimant and the defendant knew the facts to be, and the knowledge and information the respective parties knew about (and were allowed to rely on) before or after the publication. Now ‘no account’ is to be taken of these matters when a judge looks into the pleading.
In summary, clause 3 of the Bill basically widens the material or facts on which a defendant says they have based their comment. For example, a defendant can now rely on facts first learned after publication, and the defendant can rely on facts or material regardless of whether or not they are actually part of the publication or accurate. This could be problematic since, if the law progresses the way it is currently drafted, a defence could succeed even where the defendant did not know the facts before making their comment, or was making the comment based entirely on untruths. Essentially, however, the opinion delivered must still be one that is honest, so no matter how wide-reaching the facts included by the defendant are (and the claimant can rely on their own facts too), publishers, virulent critics and business competitors will not be able to strongly defend negative commentary with impunity.
It remains to be seen what the House of Lords will say about whether an untrue fact that was relied on can make the defence fail. It is hard to see why untrue facts should be within the ambit of facts on which a publisher can form an ‘honest opinion’.
Comment
Contrary to what reform campaigners and Singh commentators appear to be saying, defamation law is not being used in the UK to restrict the diffusion of opinions, commentary and ideas. As we have already noted, ideas and opinions are incapable of defaming anyone, or any corporate entity. Individuals, communications executives, and corporate spokespeople and directors are free to make boisterous comments in the press concerning businesses and their competitors, as long as those comments could have been derived by an honest person from true facts. There is not even a requirement that the comment is in any sense reasonable, all it has to be is merely an honest opinion on facts in the public interest. The new proposed legislation clarifies the old law by name, clearing up inconsistencies and simplifying definitions, making it easier reading.
Although semantically the new legislations represent change, the proposed conditions are a far cry from a real overhaul of the old defence. What this really means in practical terms is that individuals, business persons and corporate entities should not live in fear of publications that are strong and critical, but maintain robust reputation defence and public relations strategies, and should conduct business as usual.