The UK Supreme Court reformulates the “Honest Comment” Defence

Last week, the UK Supreme Court delivered a media friendly ruling, reinstating a fair comment defence in the case of Spiller and another v Joseph and others [2010] UKSC 53. The Court reformulated the factors that a defendant must demonstrate when pleading fair comment (or honest comment, as it has now been renamed). While the comment must explicitly or implicitly indicate, at least in general terms, the facts on which the comment is being made, the reader does not have to be put a position to judge for himself how far the comment was well founded.

The Supreme Court was asked to decide (1) whether the defendants could rely in support of their plea of fair comment on matters to which they made no reference in their comment? (2) whether the matters to which the defendants did refer in their comment were capable of sustaining a defence of fair comment? In this case, the facts on which the defendants relied in support of their plea of fair comment included a fact to which they made no reference in the publication complained of.

Traditionally, the defence of fair comment requires the defendant to demonstrate the following (Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777):

• The comment must be on a matter of public interest.
• The comment must be recognisable as comment, as distinct from an imputation of fact.
• The comment must be based on facts which are true or protected by privilege.
• 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. 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.

Read the complete article here

Lawyers Niri Shanmuganathan, Lorna Caddy