Supreme court changes fair comment defence in libel cases
Guardian: Lord Phillips says that key test for defending libel cases should be changed to ‘honest comment’ in light of new technology
Spiller and another (Appellants) v Joseph and others (Respondents)  UKSC 53
On appeal from the Court of Appeal  EWCA Civ 1075
JUSTICES: Lord Phillips (President), Lord Rodger, Lord Walker, Lord Brown and Sir John Dyson
The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the appellants. The substantive judgment is given by Lord Phillips (President), with some additional comments from Lord Walker.
REASONS FOR THE JUDGMENT
The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong case of Tse Wai Chun Paul v Albert Cheng  EMLR 777. 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.
The full judgment may be read here: Read judgment
Boob Job cream manufacturer ‘using libel laws to silence critics’
Guardian: Rodial has violated legal principles by threatening to sue plastic surgeon who questioned product’s efficacy, Commons told
The company that produces Boob Job cream has been accused of being a “charlatan and a bully” for using libel laws to silence a plastic surgeon who criticised its product.
Rodial, which claims its cosmetic cream can increase a woman’s breast size by up to 8%, threatened to sue Dalia Nield after she said the product’s claim was “highly unlikely”.
But speaking in the house of commons yesterday, Conservative MP David Davis said that the ability of companies such as Rodial to use libel law against critics was a violation of ancient principles of English law.
“[Rodial’s threat] would be ludicrous, bordering on the farcical, were it not so serious in its wider implications,” said Davis.
“It is a disgraceful tactic, and it should not be possible under a decently balanced judicial system.”
The debate on libel reform represents the latest use by MPs of parliamentary privilege to bypass the threat of a lawsuit for speaking out about individual cases.
The debate in Parliament on reform of the libel laws is due next year. Given the very modest reform in the Supreme Court judgment and a desire in Parliament and elsewhere for structured and sensible form of the law on this tort, it seems that this debate and reform cannot come soon enough.