Case Facts
The claimants were members of two musical acts, The Gillettes and Saturday Night at the Movies. The first claimant was the lead singer and de facto manager of both acts. The first defendant was a director of the second defendant company, which provided entertainment booking services and advertised performers on its website.
On 19 April 2006, the first claimant signed a booking agreement for a performance at a venue called Bibis. The agreement contained a re-engagement clause, which required any further bookings at that venue within twelve months to be made through the second defendant company. In May 2007, the first claimant arranged a further performance at Bibis directly with the venue, thereby bypassing the defendants entirely. When the first defendant complained by e-mail, the first claimant responded dismissively, stating that the contract was "mearly [sic] a formality and holds no water in legal terms" and that the other claimants, not having personally signed the contract, were not bound by it.
Following this exchange, the defendants posted a notice on their website stating that they were no longer able to accept bookings for the claimants, as the claimants were "not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract". The posting further stated that "artists' obligations for your booking may also not be met" and advised prospective bookers to "take legal advice before booking this artist". The posting reproduced only a small portion of the first claimant's e-mail, and that portion was partially misquoted.
The claimants brought defamation proceedings, contending that the posting bore the meaning that the claimants were "grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform". The defendants relied on the defences of justification, fair comment, and qualified privilege.
At first instance, the judge struck out the defences of fair comment and qualified privilege. The Court of Appeal declined to reinstate the fair comment defence. The defendants appealed to the Supreme Court.
Held
The Supreme Court allowed the appeal and reinstated the defence of fair comment, overturning the Court of Appeal's decision.
The court considered the five propositions governing the defence of fair comment as formulated by Lord Nicholls in Cheng Albert v Tse Wai Chun Paul [2000]. Those propositions are: (i) the comment must be on a matter of public interest; (ii) the comment must be recognisable as comment, as distinct from an imputation of fact; (iii) the comment must be based on facts which are true or protected by privilege; (iv) the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made; and (v) the comment must be one which could have been made by an honest person, however prejudiced or exaggerated.
The Supreme Court reformulated the fourth proposition, holding that a comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. It is not necessary for the comment to identify those facts with sufficient particularity to enable the reader to judge for themselves whether the comment was well founded. It is sufficient that the comment, in general terms, identifies what led the commentator to make it, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars why he expressed those views.
Applying this reformulated test to the facts of this case:
- The defendants could not rely upon an earlier alleged cancellation (the "Landmarc breach"), because it was not referred to in the posting and did not form part of any generic allegation of misconduct identified therein.
- The defendants could rely upon the first claimant's e-mail, despite its being partially misquoted in the posting, as it arguably evidenced a contemptuous and cavalier approach to contractual obligations. If the e-mail as quoted differed significantly from the e-mail as sent, the jury should be directed to disregard it; otherwise, it could be taken into account when considering the fair comment defence.
- The defendants could rely upon the Bibis breach, as the posting had sufficiently identified it as part of the subject matter of the comment, even without full particularisation.
The court also recommended, per curiam, that the defence of fair comment should be renamed "honest comment", to better reflect the true nature of the defence.
Ratio Decidendi
The ratio of this case is the reformulation of the fourth proposition from Cheng Albert v Tse Wai Chun Paul [2000]. To establish the defence of fair comment (now recommended to be called "honest comment"), a defendant is not required to identify the factual basis of the comment with sufficient particularity to enable the reader to evaluate its merits for themselves. It is sufficient that the comment, whether explicitly or implicitly, indicates in general terms the facts upon which it is based. The comment must at least identify, in general terms, what led the commentator to make it, striking a fair balance between the commentator's freedom of expression and the need for the subject of the comment to understand and respond to the criticism.
In reaching this conclusion, the court considered Kemsley v Foot [1952], in which the House of Lords had held that a headline reading "Lower than Kemsley" appearing above an article criticising another newspaper was a sufficient identification of the subject matter to support a fair comment defence, even in the absence of any further specification. The Supreme Court treated this as an established example of the principle that identifying the subject matter in general terms is sufficient.
The reformulated fourth proposition resolves the tension between, on the one hand, requiring a defendant to particularise facts in sufficient detail to enable readers to form their own judgement, and on the other, affording defendants a workable and proportionate defence of fair comment where the subject matter is sufficiently indicated by context.
Obiter Dicta
The per curiam recommendation that the defence of fair comment should be renamed "honest comment" was not strictly part of the ratio of the decision, as it did not affect the outcome of the appeal. It was, however, expressed by all members of the court and reflected their view that the existing label was misleading. The word "fair" had been interpreted as requiring the court to assess whether the comment was one which a fair-minded person could have made, but the true requirement is that the comment be one which an honest person could have held, even if prejudiced or exaggerated. The label "honest comment" was considered to capture this more accurately.
The court also noted, in passing, that the defence of justification remained available to the defendants and had not been struck out at first instance. The eventual outcome of the case on that defence was a separate matter for the trial court to determine.