“Unprofessional” website comment on Motown tribute band can be fair comment
1 December 2010
The Supreme Court has overturned the Court of Appeal to unanimously hold that the defence of fair comment should be open to a booking agent which said on its website that a Motown tribute band, the Gillettes, were “unprofessional”. The court has also renamed the defence “honest comment”.
The decision will be a relief to those who think that Britain’s libel laws are too tough and that the fair comment defence – an important element of free speech rights – has become too difficult to deploy. Meanwhile, the Supreme Court recommended in its judgment that the whole issue of fair comment should be reviewed by the Law Commission or an expert committee. Presumably, this will be on the agenda for Lord Neuberger’s upcoming review of libel law. The Guardian has commented on the judgment here.
The background to the case can be found here. Amongst others, the website words which The Gillettes are complaining about are: “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.”
In summary, the Supreme Court ruled (based on the court’s press summary):
The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong caseof Tse Wai Chun Paulv Albert Cheng  EMLR777. His fourth proposition, namely that the comment must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded, had attracted criticism and was challenged by the appellants in this appeal [para 70].
The defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest. Sometimes the facts underlying the comment were notorious; at other times they might be only known to the person making the comment. The only defence to a bare comment which implied the existence of unidentified discreditable conduct was justification [para 89]. Fair comment could however be raised where the comment identified the subject matter general terms. Particulars could then be given in the defence which identified the features which led to the formation of the view expressed [para 96]. Lord Nicholls’ requirement, that readers should be in a position to evaluate the comments for themselves, could not be reconciled with the authorities [para 98]. This was so, even where the subject matter was not within the public domain. Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment [para 99]. The fourth proposition should be re-written as follows:
‘Next, the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.’
The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case [paras 112-116]. The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re-naming of the defence from ‘fair comment’ to ‘honest comment’ [para 117].
Applying the law to the facts of this case, the posting by the appellants referred to the breach of contract relating to the Bibis restaurant, and to the respondents’ email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the respondents’ contractual obligations to the appellants. The email as quoted arguably evidenced a contemptuous attitude to contracts in general. It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference [para 124]. The defence should therefore be reinstated.
Update, 2 December 2010 – Catherine Rhind has commented on the judgment on Inforrm’s Blog:
Despite branding the underlying dispute between the Motown Tribute Band “the Gillettes” and their entertainment booking service a “considerable … storm in a tea-cup”, the Supreme Court have broadened the scope and application of the defence of fair comment.
She comments that the judgment presents a “helpful simplification of this principle of the law of fair comment” but that certain aspects of the judges’ reasoning, such as the meaning of “general terms” may need clarification. The judgment raises “interesting issues which are ripe for reform” and also sees the Supreme Court entering “gently” into the political arena, suggesting that libel reform should arise from the Law Commission or an expert committee, rather than a consultation as has been suggested.
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