Contact Law blog

Defence of fair comment renamed ‘honest comment’ by Supreme Court

Today’s Supreme Court judgement will significantly impact defamation law in England and Wales as it deals with one of the “most difficult areas of the law of defamation, the defence of fair comment”, renaming it “honest comment”.

The defence of fair comment allows the maker of an alleged defamatory comment to defend the statement on the basis that it is an honest comment made on the basis of true facts. The true facts that the comment is based on must be contained in the same piece of writing or broadcast, or must be referred to sufficiently.

The defence of fair comment is available when the statement is deemed to be in the public interest. Therefore, it is widely used by journalists and other people in the media.

However, the judge in Spiller v Joseph, today’s Supreme Court judgement, said that the law on defamation must recognise that the defence originated in a very narrow form in a society very different from today’s. The mass use of electronic communication means that the defence can be used by bloggers, people who phone-in to television programmes, critics who write reviews, editorials etc, and the law should be simplified to allow an easier use of the defence.

In order to do so, the Supreme Court held that it is no longer necessary for the defendant to provide the facts on which they based their comment in sufficient detail as to put the reader in a position to judge for himself how far the comment was well-founded.

Instead, the defendant’s comment must “identify, at least in general terms, the matters on which it is based”.  The reader must be able to understand what the comment is about and the defendant must be able to, if challenged, explain the comment by giving particulars of the subject matter of his comment and why he expressed the views that he did.

The court held that the test for identifying the factual basis of an honest comment must be flexible enough to allow for the type of case as represented by Spiller v Joseph.

The case concerns a comment posted online by the defendants, who are promoters, about the claimants, who are performers. The Supreme Court held that the defendants should be allowed to use the defence of fair comment as well as truth in their defence of the claimants’ allegations of libel.

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