An honest comment

8 March 2012

The Supreme Court has recently made changes to the defence of “fair comment”, one of the most common defences provided by defendants during defamation hearings. The defence of fair comment has long been a bastion of free speech within this country, providing a defence for comments made on a matter considered of public interest. Even if such comments made were logically unsound, so long as they were made with an honest belief in their reliability, and a reasonable person would form the same opinion when faced with the facts, then the statement would be protected. The Supreme Court were asked to consider in Spiller v Joseph1 what facts were necessary alongside the comment in order to judge whether the statement was fair or not. The judgment given on 1 December 2010 clarified the decision and made changes to the law governing the defence. The most significant change made was that the Supreme Court held that Lord Nicholls’ fourth proposition in relation to fair comment in Tse Wai Chun Paul v Cheng2 – 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” — was incorrect. It was held that the publication only had to indicate in general terms the facts on which the comment is based. The reader of such a statement does not have to be able to judge for him or herself to what extent the comment was well founded; however, the comment must identify in general terms what it was that led the commentator to make it. The Supreme Court also made a more superficial change, holding that the name of the defence should from now on be “Honest Comment”. This was followed by a clarification that the defendant could not rely on facts that they did not know at the time of making the comment, or facts which came into existence after the comment was made, even if such facts would help to prove retrospectively that the statement made was fair. The defendant making the “honest comment” would at the time of making the statement have no knowledge of these facts and therefore cannot rely on them as part of his or her defence. Finally, the Supreme Court hinted that the time might have come to get rid of jury trials in libel litigation, it shall remain to be seen whether any action is taken by Parliament in regards to this suggestion. – For additional information or comment please contact: Justin Emerson of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.