COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Eady
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal Civil Division
LORD JUSTICE KEENE
LORD JUSTICE DYSON
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Jonathan Crystal (instructed by Messrs Atkins) for the Respondent
Hearing dates: Monday 21st May 2007
Crown Copyright ©
Lord Justice Keene:
"How horribly prescient; Keith Burstein's opera about suicide bombers receives its world premiere a few weeks after 7/7. What a pity it's such a trite affair. The heroine, Palestinian poet Leila (Bernadette Lord), leaves Daniel, a Jewish composer, to return to her homeland to become a suicide bomber. Her cell leader Mohammed falls in love with her, sees the error of his ways and, in order to save her, hands Leila over to the Americans. But it's all too much for her so she tops herself anyway.
The libretto by Dic Edwards is horribly leaden and unmusical and the music uninspiring, save for the odd duet, and full marks to the talented cast of four for carrying it off. But I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult."
Both before Eady J and in this court the focus, certainly by the claimant, has been on the final passage in the review.
"(i) The Claimant is a sympathiser with terrorist causes and actively promotes such belief in his artistic work;
(ii) The Claimant applauds the action of suicide bombers and raises them to a level of heroism."
"… the claimant wishes to argue in effect that the message of the piece was that a grievous insult was offered by him; that the critic went beyond commenting on the content of the artistic work and incorporated an allegation about his standpoint, and in particular a sympathy on his part for suicide bombers."
The judge ruled that he could not hold that the words complained of were incapable of bearing the meanings pleaded by the claimant. He said this of those pleaded meanings:
"They are hotly disputed, but it seems to me that they are meanings which the words are at least capable of bearing. I can understand that one point of view is that there was no more than a comment about the opera and the inference which the critic drew about the treatment of suicide bombers in the opera. A jury may ultimately agree with that interpretation of the words complained of. But the use of the word "insult" is arguably to attribute a motive to the author or to those responsible for putting the production before the audience."
"… this is classic fair comment territory and it is, in my view, very likely that a jury will ultimately hold that the defence of fair comment succeeds, but I cannot say that it is so clear that I can come to a conclusion at this stage of the kind that I am invited to arrive at."
He did, however, strike out the claimant's plea of malice.
"In my view by parity of reasoning, when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence."
"As with any other defence, the first step is to identify the meaning of the words and then to consider whether the defence of fair comment has been made out."
In fact, the defence pleaded in the present case put forward no alternative meaning of the words used in the review of the opera. It merely denied that they bore or were capable of bearing the meanings set out in the Particulars of Claim. It then went on to raise a defence of fair comment in respect of "the said words".
"there is no defensible way in which the courts can adjust the meaning so as to include things which no sensible reading of the words could embrace."
"do not, however, prevent this court from intervening in an appropriate case, where it is satisfied that the judge has clearly gone wrong as a matter of approach or has reached a conclusion which is patently unsustainable." (paragraph 17)
It was there emphasised that no self-denying ordinance can absolve this court from its responsibility to act where it is satisfied that it should intervene, even where the ruling below has been an "inclusive" one: paragraph 18.
"In deciding whether words are capable of conveying a defamatory meaning, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation."
"the Claimant is a sympathiser with terrorist causes and actively promotes such belief in his artistic work"
could not be attached to the words used in the review by any reasonable jury. Even taken in isolation, the final sentence simply is incapable of being so interpreted, but that sentence has to be read in context, and part of that context is the earlier sentence referring to Mohammed seeing "the error of his ways." It would be a very strained interpretation to read this review as meaning that the claimant was a terrorist sympathiser and I would reject such a meaning.
Comment or Fact?
"More accurately it has been said that the sense of comment is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc."
"it is not libellous to ridicule a literary composition, or the author of it, in so far as he has embodied himself with his work …
Every man who publishes a book commits himself to the judgment of the public, and anyone may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right. In the present case, had the party writing the criticism followed the plaintiff into domestic life for the purpose of slander, that would have been libellous: but no passage of this sort has been produced; and even the caricature does not effect the plaintiff, except as the author of the book which is ridiculed."
That, submits Miss Sharp, underlines the importance of the fact that any attack on the author (if there was one) is based solely on the work in question.
"To say that 'A is a disgrace to human nature' is an allegation of fact, but if the words were 'A murdered his father and is therefore a disgrace to human nature' the latter words are plainly a comment on the former."
Such is the situation in the present case.
"if a journalist makes inferences as to someone's motives, that may be treated as the expression of an opinion even though the inference drawn may be to the effect that there exists a certain state of affairs (including a state of mind)."
I agree with that proposition. It does not, of course, mean that a jury might not properly in some cases conclude that the statement was one of fact, but it demonstrates that it is not enough that the inference is as to a person's motives – the words may still be comment, and for the reasons I have given earlier I am firmly of the view that the words complained of in the present case, when seen in context, carry an unmistakable badge of comment.
Was the Comment "Fair"?
"a critic need not be mealy–mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism."
Lord Justice Dyson:
Lord Justice Waller: