London defamation solicitors look at the defence of honest comment
Recent case law has had a marked impact on the need to reform this area of law. London defamation experts at Southampton Row Solicitors examine the impact of the defence of honest comment, or 'fair comment' as it was previously known.
First, let's go back to basics and ask what is a libel, and when will it occur? Defamation is any derogatory comment made by one person about another, particularly when it causes damage to someone's reputation. It is a tort, split into 2 categories, the spoken word and the written word. These days that includes offensive material that is made available on the internet. This leaves Internet Service Providers wide open to an action for libel. It is a common misperception that libel includes only the written word but it can relate to signs, cartoons and photographs too.
So, what is the defence of honest comment and when is it available? To succeed, there are a number of criteria to satisfy:-
· Comment must be on a matter of public interest.
· Must be recognizable as comment rather than an imputation of fact.
· Comment must be based on facts which are true or protected by privilege.
· Must indicate what the facts are on which the comment is made (so the reader himself can judge how far the comment was well founded).
· Comment must be one that could have been made by an honest person however exaggerated or obstinate his views!
Malicious comments will not fall under this defence. It must also be easy to separate the facts from the comment, so this can limit damage caused by unfavourable inferences. The defence of honest comment is defeated by proof the defendant did not genuinely believe the view he expressed; honesty of the belief is key to this, and any spite, animosity, or intent to injure, or intent to arouse controversy does not of itself defeat the defence, but may give rise to showing a lack of genuine belief. Fair comment is often used as a shield by journalists and critics.
On 1 December 2010 Joseph and Spiller, the first defamation case to be heard by the Supreme Court changed the landscape of this defence. The relevant 'comment' in this case referred to an event 14 months before the comment was made. The reader could not have evaluated the comment for himself. However, it was held that the public can now use the internet to find out about the comment themselves so this did not prevent it satisfying the criteria. The very name 'fair comment' is actually misleading, as the fairness of the comment is not one of the factors set out in the above test. England is perceived to be a claimant friendly place to hear a claim; dubbed by the US as a 'town called Sue!' - not least because a claimant does not currently have to show they suffered any particular loss.
It will be interesting to see how the courts determine whether an opinion was honestly held or not, and what effect untrue facts will have when they are relied on in a libelous statement.
For all libel and slander enquiries, please contact Southampton Row Solicitors defamation department.
