UKSC 53
On appeal from:  EWCA Civ 1075
Spiller and another (Appellants) v Joseph and others (Respondents)
Lord Phillips, President
Sir John Dyson, SCJ
JUDGMENT GIVEN ON
1 December 2010
Heard on 26 and 27 July 2010
David Price Solicitor
(Advocate of David Price Solicitors & Advocates)
(Instructed by Pattinson & Brewer)
Andrew Caldecott QC
(Instructed by Reynolds Porter Chamberlain LLP)
"16. … First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler  2 QB 375, 391.
17. Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:
'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'
18. Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler  2 QB 375, 395. If the facts on which the 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.
19. Next, 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.
20. Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd  1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But 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: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.
21. These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence."
It appears you have taken a booking directly with Bibis. We will be instructing our legal team to deal with this. I will also be discussing this with the Musicians Union as it does appear that, aside from having no commitment to those that give you work, you are also not able to abide by the terms of your contract.
'The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events'.
Forthwith, we will not be representing you any longer as we can only work with professional artists who can accept our terms and conditions.
It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artitses [sic] alike with work, one does not work without the other.
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. You should consider looking after your clients/venueus[sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more. You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary.
I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms and conditions.
Thers [sic] is one outstanding show with you guys Aug 4th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee £900.00 + vat. TOTAL =£1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancellation [sic] of the show. Please confirm this can be organised within 7 days or I will cancel the date.
I look forward to any legal trysts.
Craig (On behalf of the Gillettes)"
"1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract. …
What we say:
The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of '…contracts hold no water in legal terms' (27.03.07). For this reason, it may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for the Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.
Instead we recommend any of the following professional bands and artists…"
"…the claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies." (para 8)
"Meanings that the defendant alleges to be true
9.1 The first claimant on behalf of the claimants has :-
9.1.1. Conducted himself in such a manner so as to entitle the defendants to conclude that 'The Gillettes' were not sufficiently professional to feature in the second defendant's portfolio.
9.1.2. Breached the terms of agreements with the second defendant.
9.1.3. Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007.
9.2 In the circumstances, the claimants may not necessarily adhere to the terms of booking agreements signed by the first claimant." (para 9)
a) By-passing the defendants when accepting a re-engagement at Bibis;
b) The first claimant's email of 27 March 2007;
c) The cancellation of the Landmarc booking when something better had come up.
"'The Gillettes' c/o Craig Joseph are not professional enough to feature in our portfolio…it may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for 'The Gillettes' and 'Saturday Night at the Movies' may sign a contract for your booking but will not necessarily adhere to it."
The facts relied upon in relation to the plea of justification are equally relied on as facts upon which the comment was based.
The proceedings below
"58. The defence of fair comment is attacked on three grounds. First, it is said that no part of the words complained of is capable of being classified as comment; that is to say, a jury would be perverse to come to such a conclusion. It is necessary to remember, in this context, that the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable: see eg Gatley on Libel and Slander, 11th ed (2008), at para 12.7. For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (eg in relation to someone's secret motives), it would be taken as comment rather than fact.
59. Here, the real sting of the libel (although this may well be for the jury to decide in due course) would appear to be the allegations that the claimants take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings. It seems to me that they are factual in character rather than the expression of opinions. All that is specifically relied upon is the allegation of a breach, which forms the subject-matter of the justification defence. It may be thought, therefore, to add very little.
60. Also I cannot see that a (one-sided) summary of a private contractual dispute can be said to constitute a matter of public interest. (I have already referred to the misquotation from the first claimant's email of 27 March, where the impression was given that he was speaking of contracts in general rather than of the particular re-engagement term sought to be imposed by the defendants. This does not arise for consideration in the present context, although it would plainly be relevant if the plea of fair comment were to survive in determining whether or not it had been made with reference to 'facts truly stated'.)"
"I see no merit in the argument that the comment cannot constitute a matter of public interest. Those in the business of entertaining the public, a business in which many people are engaged, will be concerned, when serving the public, to know which artists can be relied on to perform their contracts and which cannot. The comment is arguably in the public interest."
The last sentence suggests that Pill LJ considered that this issue was one for the jury, whereas the authorities indicate that it is a question of law for the judge. The claimants have, however, treated Pill LJ's ruling as a finding that the subject matter of the comment was a matter of public interest and have not challenged that finding.
"40. The words complained of, however, do also allege that the claimants have 'not been able to abide by the terms of their contract' and that the email was written 'following a breach of contract', thus possibly attracting an application of section 6 of the Defamation Act 1952. Under the heading 'Fair Comment', the section provides:
'In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved'.
42. Clearly, the defendants' real complaint against the claimants was a breach by the claimants of the re-engagement clause in the contract between the claimants and the second defendant. There is no reference to that in the words complained of. The contract is not identified in the publication, still less the term allegedly breached. Moreover, the single specific allegation of fact in the words complained of is plainly untrue.
43. Mr Price relied, in a section 6 context, on the more general allegations repeated above. In paragraph 10.2 of the re-amended defence, the defendants rely on the facts set out at in paragraph 9, other than in paragraph 9.16. Paragraphs 9.1 to 9.12 refer to the contract between the claimant and the second defendant and to the re-engagement term. Paragraphs 9.13 and 9.14, however, refer to an alleged breach of a booking arrangement with Landmarc in Bournemouth in December 2005. That alleged breach was 'sufficiently identified' in the words complained of, it was submitted.
44. As Lord Nicholls stated in Tse Wai Chun Paul, at para 19, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. Does section 6 of the 1952 Act permit the defendants, in this context, to rely on the breach alleged in paragraphs 9.13 and 9.14 [breach of Landmarc booking]
45. I have come to the conclusion that the defence of fair comment should not be permitted to stand, on an application of section 6, on the strength of an alleged breach of contract with a hirer in December 2005. The dispute arose in March 2007 following an alleged breach by the claimants of the re-engagement term in their contract with the second defendant. That breach gave rise to the publication which led to the present action.
46. The breach of contract relied on for present purposes is of a contract with a hirer in 2005. As between the claimants and defendants, there were no repercussions in that contractual relations proceeded without complaint until March 2007. The words 'following a breach of contract' in the words complained of cannot be taken as referring to the December 2005 breach. Nor, in my judgment, can the later words in the defendants' comments. In my judgment, a jury could not properly base a finding of fair comment against the claimants, given the nature of the comment, upon a breach of contract in December 2005 14 months before the breach which led to the publication. On this ground, the judge's decision to strike out the defence of fair comment is to be upheld."
i) Can the defendants rely in support of their plea of fair comment on matters to which they made no reference in their comment?
ii) Are the matters to which the defendants did refer in their comment capable of sustaining a defence of fair comment?
The development of the defence of fair comment
"I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest."
"Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, the proceedings in courts of justice or in Parliament, or the publication of a scheme or of a literary work. But it is always to be left to a jury to say whether the publication has gone beyond the limits of a fair comment on the subject-matter discussed. A writer is not entitled to overstep those limits and impute base and sordid motives which are not warranted by the facts, and I cannot for a moment think that, because he has a bona fide belief that he is publishing what is true, that is any answer to an action for libel. With respect to the publication of the plaintiff's scheme, the defendant might ridicule it and point out the improbability of its success; but that was all he had a right to do."
"What is the meaning of a 'fair comment'? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work… .
Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all."
"The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v Chapman (1853) 3 C & K 286. The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses.
Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails.
Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation…. To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence. I agree that an allegation of fact may be justified by its being an inference from other facts truly stated, but … in order to warrant it the jury must be satisfied that such inference ought to be drawn from those facts."
"A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, Parliament itself, to be of no national or general importance…"
In so stating Viscount Finlay treated this question as if fair comment was a variety of qualified privilege. Earlier, however, at p 62 he had summarised the law of fair comment as follows:
"The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made."
"Criticism of a newspaper proprietor directed to the manner in which news is presented in papers controlled by him is to be treated on the same lines as criticism of a book or a play or other matter submitted to the judgment and taste of the public, and the critic is not to be shut out from the plea of fair comment because in his criticism he had not given or referred to examples of the conduct criticised, so long as the subject-matter of the comment is plainly stated."
"At the other end of the scale one may imagine a comment reflecting on the integrity of a subordinate official, whose activities had so far received no publicity, where it might be held that the defence was not available unless the facts relied on were substantially set out or indicated. "
He went on, at p 45, to hold that criticism directed at the manner in which a newspaper presented news was to be compared to criticism of a book.
"I do not think it is possible to lay down any rule of universal application. If, for example, a defamatory statement is made about a private individual who is quite unknown to the general public, and who has never taken any part in public affairs, and the statement takes the form of comment only and is capable of being construed as comment and no facts of any kind are given, while it is conceivable that the comment may be made on a matter of public interest, nevertheless the defence of fair comment might not be open to a defendant in that case. It is almost certain that a naked comment of that kind in those circumstances would be decided to be a question of fact and could be justified as such if that defence were pleaded. But if the matter is before the public, as in the case of a book, a play, a film, or a newspaper, then I think different considerations apply. Comment may then be made without setting out the facts on which the comment is based if the subject matter of the comment is plainly stated."
"whether a plea of fair comment is only permissible where the comment is accompanied by a statement of facts upon which the comment is made and to determine the particularity with which the facts must be stated."
"…the subject-matter upon which criticism is made has been submitted to the public, though by no means all those to whom the alleged libel has been published will have seen or are likely to see the various issues. Accordingly, its contents and conduct are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject-matter upon which the comment is founded. I am assuming that the reference is to a known journal: for the present purpose it is not necessary to consider how far criticism without facts upon which to base it is subject to the same observation in the case of an obscure publication."
"The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander, 6th ed (1929), p 166. 'Sometimes, however,' he says, 'it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if with out setting it out, he identifies the conduct on which he comments by a clear reference. In either case the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the fact correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.'
But the question whether an inference is a bare inference in this sense must depend upon all the circumstances. Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article and therefore the inquiry ceases to be – Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes – Is there subject matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such [as] an honest, though prejudiced, man might make?"
"One further matter on which some discussion took place does not, in my opinion, directly arise on this appeal, but as it may be raised in interlocutory proceedings later in the course of the action, I think it desirable to express an opinion on it. In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in [the] particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject-matter of the comment but facts alleged to justify that comment.
In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. 20 facts might be given in particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other 19 would not of necessity defeat the defendants' plea.
The protection of the plaintiff in such a case would, in my opinion, be, as it often is in cases of the like kind, the effect which an allegation of a number of facts which cannot be substantiated would have upon the minds of a jury who would be unlikely to believe that the comment was made upon the one fact or was honestly founded upon it and accordingly would find it unfair."
"He was seeking to distinguish facts from comment and in effect saying that the facts alleged must be such as to warrant an honest man's making the comment complained of. He had not to consider whether the facts must be set out in full or whether a reference to well known or easily ascertainable facts was a sufficient statement of those relied on."
"The forms in which a comment on a matter of public importance may be framed are almost infinitely various and, in my opinion, it is unnecessary that all the facts on which the comment is based should be stated in the libel in order to admit the defence of fair comment. It is not in my opinion, a matter of importance that the reader should be able to see exactly the grounds of the comment. It is sufficient if the subject which ex hypothesi is of public importance is sufficiently and not incorrectly or untruthfully stated. A comment based on facts untruly stated cannot be fair. What is meant in cases in which it has been said comment to be fair must be on facts truly stated is, I think, that the facts so far as they are stated in the libel must not be untruly stated."
"We accordingly recommend an amendment of the existing law analogous to that which we have recommended in relation to the defence of 'justification', namely that a defence of 'fair comment upon a matter of public interest' should be entitled to succeed if (a) the defendant proves that so much of the defamatory statements of fact contained in the alleged libel is true as to justify the court in thinking that any remaining statement which has not been proved to be true does not add materially to the injury to the plaintiff's reputation, and (b) the court is also of opinion that the facts upon which the comment is based are matters of public interest and the comment contained in the alleged libel was honestly made by the defendant."
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
6 Fair Comment
In action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved."
"The truth is that the burden on the defendant who pleads fair comment is already heavy enough. If he proves that the facts were true and that the comments, objectively considered, were fair, that is, if they were fair when considered without regard to the state of mind of the writer, I should not have thought that the plaintiff had much to complain about; nevertheless it has been held that the plaintiff can still succeed if he can prove that the comments, subjectively considered, were unfair because the writer was actuated by malice."
"In order to make a good plea of fair comment, it must be a comment on facts existing at the time. No man can comment on facts which may happen in the future. There is a passage in Gatley on Libel and Slander, 6th ed (1967), p 723 which goes further. It says: 'The facts which the defendant seeks to prove as the basis of his comment must have been known to him when he made the comment.' I do not know that I would go quite so far as that. A man may comment on existing facts without having them all in the forefront of his mind at the time. Nevertheless it must be a comment on existing facts."
If, which I doubt, Lord Denning intended to say that a defence of fair comment could be based on facts unknown to the defendant at the time of his comment, the other two members of the court did not agree. Davies LJ stated, at p 920:
"If it is necessary for the man making the comment to know the facts at the time he makes it, it follows as the night follows the day that it is impossible for him to rely on events which at that time had not happened."
Russell LJ remarked, at p 921, that it was not disputed that the facts upon which a defence of fair comment were based could only be those known at the time of publication. Subsequently, in London Artists Ltd v Littler  2 QB 375, 391, Lord Denning MR stated:
"In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v. Dimbleby  1 KB 360,364. They are the facts on which the comments are based or from which the inferences are drawn – as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v. Foot  AC 345; but he must get them right and be ready to prove them to be true."
"The civil law of libel is primarily concerned to provide redress for those who are the subject of false and defamatory factual publications. Thus in the simplest case A will be entitled to relief against B if B publishes a defamatory factual statement concerning A which B cannot show to be true. The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule already mentioned that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated. Failing that, the comment itself must be justified."
Bingham LJ went on to hold, at p 45, that fairness to the subject of a defamatory comment based on a privileged statement required that the commentator should at least base his comment on a fair and accurate account of the occasion on which the statement was made.
"In my judgment the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves. The defence of fair comment is available to a defendant who has done no more than express his honest opinion on publications put before the public. It is sufficient for him to have identified the publication on which he is commenting, without having set out such extracts there from as would enable his readers to judge for themselves whether they agreed with his opinion or not."
"It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made" see the discussion in Duncan & Neill on Defamation, 2nd ed (1983), pp 58-62."
At p 201 he referred to the fact that proof of malice denied protection to defamatory statements, whether of comment or fact. He added:
"In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based."
"Proof of malice is the means whereby a plaintiff can defeat a defence of fair comment where a defendant is abusing the defence. Abuse consists of using the defence for a purpose other than that for which it exists. The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting on matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interst that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree."
"Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth".
"Formerly, it was widely believed that the idea of malice was essentially the same in fair comment [as in qualified privilege] and that the cases were essentially interchangeable. It has now been demonstrated that this is incorrect."
The last sentence is a remarkable tribute to the standing of the Court of Final Appeal of Hong Kong and, more particularly, of Lord Nicholls.
"Thus, the comment is one which is based on fact; it is made in circumstances where those to whom the comment is addressed can form their own view on whether or not the comment was sound; and the comment is one which can be held by an honest person."
i) To what extent is it necessary for a defendant relying upon fair comment to be able to demonstrate that the facts upon which the comment was based are to be found in the text of the words complained of?
ii) How far must the author of the words complained of be aware at the time of publication of the facts sought to be relied upon to support the comment?
Eady J carried out a detailed analysis of many of the authorities to which I have referred and reached the following conclusions:
(1) Any fact pleaded to support fair comment must have existed at the time of publication.
(2) Any such facts must have been known, at least in general terms, at the time the comment was made, although it is not necessary that they should all have been in the forefront of the commentator's mind.
(3) A general fact within the commentator's knowledge (as opposed to the comment itself) may be supported by specific examples even if the commentator had not been aware of them (rather as examples of previously published material from Lord Kemsley's newspapers were allowed).
(4) Facts may not be pleaded of which the commentator was unaware (even in general terms) on the basis that the defamatory comment is one he would have made if he had known them.
(5) A commentator may rely upon a specific or a general fact (and, it follows, provide examples to illustrate it) even if he has forgotten it, because it may have contributed to the formation of his opinion.
(6) The purpose of the defence of fair comment is to protect honest expressions of opinion, or inferences honestly drawn from, specific facts.
(7) The ultimate test is the objective one of whether someone could have expressed the commentator's defamatory opinion (or drawn the inference) upon the facts known to the commentator, at least in general terms, and upon which he was purporting to comment.
"Whilst it is necessary for readers to distinguish fact from comment, it is not necessary for them to have before them all the facts upon which the comment was based for the purpose of deciding whether they agree with the comment (or inference). I draw that conclusion with all due diffidence, since Lord Nicholls has twice expressed the opposite view, but it does seem consistent with principle and, in particular, with the undoubted rule that people are free to express perverse and shocking opinions and may nevertheless succeed in a defence of fair comment without having to persuade reasonable readers, or the jurors who represent such persons, to concur with the opinions. It is difficult to see why it should matter whether a reader agrees; what matters is whether he or she can distinguish fact from comment. Sometimes that will be possible, as it was in Kemsley v Foot, without any facts being stated expressly, because either they are referred to or they are sufficiently widely known for the readers to recognise the comment as comment."
The Strasbourg jurisprudence
"Freedom of Expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it – Jerusalem v Austria (2003) 37 EHRR 25, para 43."
In Lindon. Otchakovsky-Laurens and July v France (2008) 46 EHRR 35 the Grand Chamber went further, stating at para 55:
"The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive."
The defendants' submissions
a. the claimants' email of 27 March 2007 (a fact alleged);
b. the breach of contract in relation to the Bibis booking (a fact referred to);
c. the breach of contract in relation to the Landmarc booking (a fact referred to).
Mr Price submits that it does not matter that the readers of the posting had no knowledge of the facts in relation to the two breaches of contract referred to, so that they were unable to judge for themselves how far the comment was well founded. In suggesting to the contrary in his fourth proposition in Cheng  EMLR 777, para 19 Lord Nicholls had fallen into error. The error in misreporting the terms of the claimants' email did not invalidate the defence of fair comment because the comment could be fairly founded on those of the facts alleged or reported that were accurate. Taken overall the three facts on which the comment was based were substantially true.
• sweep away the requirement that the comment should relate to matter of public interest;
• hold that the subjective state of mind of the defendant is wholly irrelevant;
• restrict the requirements of the defence to (a) a requirement that the words complained of should be comment and (b) a requirement that there should be shown to exist one or more facts (or privileged statement) on which an honest person could have founded the relevant comment.
• Those facts could even come into existence after the date of the publication. Thus reliance could be placed on the claimants' conduct in relation to the Coombes wedding.
In short the existence of a defence of fair comment should depend on an entirely objective appraisal of the relevant facts in the same way as the defence of justification. Mr Price submitted that the defence should be renamed simply "comment" or "opinion".
The interveners' submissions
1. To qualify for the protection of the defence of honest opinion a statement must be recognisable in its context as opinion. A statement of opinion may in context be an inference of fact drawn by the commentator from facts stated or indicated by him.
Mr Caldecott submitted that even a statement of a fact that is verifiable can amount to a comment if the commentator makes it plain that he is merely expressing an opinion about the existence of the fact on the basis of an inference from other facts.
2. The opinion will qualify for protection if any person, however prejudiced, exaggerated or obstinate his views, could have honestly expressed it on proved facts or on alleged facts protected by privilege.
Mr Caldecott submitted that this principle should apply to all opinions – there should not be a more stringent test for opinions imputing dishonourable motives.
3. The opinion must be expressed on a matter of public interest.
The interveners have not sought to abolish this requirement on the basis that such a change in the law should receive very close examination and detailed submission.
4. The defendant may rely on any proved facts or privileged material in existence at the time of publication, provided those facts relate to the subject matter of the comment.
This answers the central issue of principle that arises on this appeal. It is the interveners' case that the comment must identify its subject matter, but need not allege or refer to particular facts as the basis for the comment. There is no need to place the reader in a position to form his own view on the validity of the comment – Lord Nicholls erred in so holding in Cheng  EMLR 777,  HKCFA 35, para 19. If facts exist at the time of the comment the commentator can rely upon them as the foundation for his comment, even if he was unaware of them when he made his comment. Events subsequent to the comment cannot, however, be relied upon.
5. If the defendant proves sufficient facts to satisfy the objective test set out in principle 2, then (subject to malice) the defence succeeds irrespective of whether facts referred to in the publication or facts relied on extrinsic to the publication are not proved or are misstated. This principle does not absolve a defendant from the obligation to prove defamatory statements of fact to be true (subject to section 5 of the 1952 Act).
6. The defence of opinion is lost where a claimant proves that the defendant did not act honestly in publishing the opinion complained of.
The interveners do not seek to remove this residual element of subjectivity in relation to the defence of fair comment. They do, however, adopt Lord Nicholls' removal from the malice that defeats fair comment the element of improper motive such as spite or ill-will.
Finally Mr Caldecott suggests that the description "fair comment" should be replaced by "honest comment".
- The statement in issue is comment and not fact;
- The matter in respect of which the comment is made is a matter of public interest;
- Where that matter consists of facts alleged to have occurred, the facts are true;
- The comment is "fair";
- The statement is not made maliciously.
"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."
Lord Walker commented in argument on the fallacy of the first part of this proposition. See also my comments at para 5 above.
"Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based."
Change of emphasis and the case for reform
"The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendos into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view." (p 170)
The application of the law to the facts of this case
i) The Landmarc breach of contract;
ii) The Bibis breach of contract;
iii) The first claimant's email of 27 March 2007.
SIR JOHN DYSON SCJ