For fair read honest

The defence of Fair Comment, henceforth to be known as Honest Comment, has been strengthened to protect internet bloggers from libel claims.
A Supreme Court ruling brought the defence into line with the age of the internet and 24-hour broadcasting. It means it is no longer necessary for bloggers who post instant criticism of artists, politicians and television shows to prove all the facts upon which their comment or criticism was made.
The Supreme Court reviewed case history and amended Lord Nicholls' ruling in Paul v Cheng 2001 which stated that….. “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 ought to be in a position to judge for himself how far the comment was well founded.”
The Supreme Court dropped the last sentence and the requirement now is that “.. the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”
It was not necessary, the justices said, that a comment must identify the matters on which it is based with sufficient detail to enable the reader to judge for himself whether it was well founded.
The subject still needs to be identifiable but only now in “general terms” so that "the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did"..
As far as renaming the defence is concerned, the court took the view that it be renamed honest comment because the adjective fair was seriously misleading as in reality the defence protected unfair comments.
Set out below: The Guardian’s Gill Phillips’s analysis, the Inforrm blog’s case-law study, and the Supreme Court’s judgement in full

Guardian's analysis

Inforrm's case-law study

Supreme Court's judgement

Just how nasty can you get?

Extract from Newsdesk Law:

“Cocky, fake, slimy, inelegant, ineloquent, charmless, witless, weird, sinister, glacially cold and luminescently remote, he may be the most chillingly repulsive politician of even this golden generation.”

Picked out above is Matthew Norman’s opinion of a Labour cabinet minister, written in the comment section of The Independent’s during the build-up to the 2010 general election. In style it follows closely the work of the Daily Mirror’s star columnist Cassandra (the late William Connor) who, long, long ago, described the celebrity pianist Liberace as:

“deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavored, mincing,..... an ice-covered heap of mother love.”

Neither very complimentary - but mild compared with the venom unleashed in this paragraph submitted by a theatre crit for a provincial town's listings magazine at Christmas, the season of goodwill:

“ Despicable excuse for kids theatre and possibly the most morally shameless example of product placement EVER. Would you trust your kids with Ronald McDonald? We hate you Ronald. We REALLY F****** hate you."

The paragraph was spiked. But need it have been? After all, Lord Nicholls said in the Court of Appeal (Cheng v Paul) that malice in the shape of spite or ill-will by the writer need not necessarily negate the defence of Fair Comment.

He went on: "Actuation by spite, animosity, intent to injure or other motivation, whatever it may be, even if the dominant or sole motive, does not of itself defeat the defence of Fair Comment though it may be evidence from which a lack of genuine belief (thus making it dishonest) may be inferred."

And he summed-up:" Critics need no longer be mealy mouthed in denouncing what they disagree with "provided the objective limits of fair comment defence were established."

He defined the limits as:
* The issue was one of public interest,
* The comment was readily recognisable as such and based on facts which were probably true or protected by privilege,
* The article explicitly or implicitly indicated the relevant facts so that the reader or hearer was in a position to judge for themselves how far the comment was well founded.
* It was a comment which could have been made by an honest person, no matter how prejudiced or obstinate."

Having said all that, the editor of the listings magazine was right to reach for the spike. Whether he would have to bin the paragraph now - post-Spiller - is another matter. Before the Spiller judgment the rant would not get the defence of Fair Comment because it neglected to give readers the facts upon which the rant was based. The reader had to be able to make his/her own mind up from the facts in, or implied, in the piece as to whether the criticism was justified. What were the facts which made Ronald so objectionable? The reader had to be told.

After Spiller the identification of Ronald McDonald in general terms, as a starting point for questioning the critic as to why he expressed the views that he did, is sufficient. What still has to be established is what "general terms" means.

All in the mind

The libel action by Richard Branson against journalist Tom Bowers resulted in a major change in the law affecting Fair Comment.

For the first time an allegation concerning the state of a person's mind can be defended as a comment.

Bowers wrote of Richard Branson: " Sceptics will inevitably whisper that Branson's motive (for his bid for the national lottery) is self glorification".

Branson claimed that this imputation of his motive was one of fact rather than comment and was untrue.

Previously it had long been held that defamatory statements concerning a person's motivation could only be defended by proving that the imputation was true, something that Bowers plainly could not do.

But the Court of Appeal held that Bower's statement could be defended by Fair Comment since it was " something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark or observation."

Judges now rule whether words are capable of being comment (the jury decides if they are).

Branson v Bower: CA judgment

Two important cases centred on fair comment.

Restaurant reviews

The first involves the reversal of a judgement which awarded a restaurant owner £25,000 damages for a review which he claimed was a hatchet job. The item 'Judgement Belfast restaurant' is a fine example of the way in which the fair comment defence is assessed by judges.

Newspaper fights libel bill for biting review - Telegraph
Judges overturn libel ruling on restaurant review | Media | The Guardian
Judgment Belfast restaurant

Science journalism

The second can be labelled landmark. The Singh case had become a cause celebre for science journalism and prompted calls for reforms to the defamation law to keep it out of scientific disputes. The Lord Chief Justice's comments at the end of the judgement indicates that he too feels that reform is needed.

Simon Singh wins libel court battle | UK news | guardian.co.uk
British Chiropractic Association v Singh [2010] EWCA Civ 350 (01 April 2010)

Cosmetic surgeon may be sued