Case Facts
In this case, the appellant, Telnikoff, was a Russian émigré employed by the BBC Russian Service as a probationer. On 13 February 1984, he published an article entitled "Selecting the right wavelength to tune in to Russia" in the Daily Telegraph. The article argued that the BBC Russian Service recruited almost entirely from Russian-speaking national minorities of the Soviet empire, with only approximately 10 per cent of staff who associated themselves ethnically, spiritually, or religiously with the Russian people. By way of comparison, the article drew an analogy with a hypothetical Greek Service staffed 90 per cent from the Greek-speaking Turkish community of Cyprus.
The respondent, Matusevich, was a Russian Jew who had suffered persecution before emigrating to the United Kingdom and was at the time employed by Radio Liberty, a United States radio station, in London. On 18 February 1984, he published a letter in the Daily Telegraph in response to Telnikoff's article. Paragraph 6 of the letter stated that Telnikoff "demands that in the interest of more effective broadcasts the management of the BBC's Russian Service should switch from professional testing to a blood test." Paragraph 7 stated that Telnikoff "is stressing his racialist recipe by claiming that no matter how high the standards and integrity of ethnically alien people Russian staff might be, they should be dismissed."
Telnikoff's statement of claim pleaded that the letter bore the following defamatory meanings: (i) that he advocated blood-testing for BBC Russian Service recruitment in order to maintain racial purity; (ii) that he advocated the dismissal of employees on racial grounds; (iii) that he had made statements inciting racial hatred and/or racial discrimination; and (iv) that he was a racialist and/or anti-semite. Matusevich pleaded fair comment in a matter of public interest but crucially did not plead justification. Telnikoff alleged in reply that Matusevich had been actuated by express malice.
The procedural history of this litigation was complex. At the original trial before Michael Davies J. and a jury on 5 October 1988, which proceeded in the defendant's absence, Telnikoff was awarded £65,000 in damages and costs. That judgment was subsequently set aside on 28 April 1989 and a re-trial ordered. At the re-trial before Drake J., which commenced on 22 May 1989, Telnikoff conducted his own case. At the close of the plaintiff's case, Matusevich submitted that there was no case to go to the jury on two grounds: first, that any reasonable jury properly directed would be bound to sustain the fair comment defence; and second, that there was no evidence of express malice. Drake J. upheld that submission, directing that there was no case to answer and withdrawing the matter from the jury. The Court of Appeal dismissed Telnikoff's subsequent appeal but granted leave to appeal to the House of Lords.
Held
The House of Lords allowed the appeal. It set aside both the Court of Appeal order of 16 May 1990 and Drake J.'s order of 25 May 1989. The cause was remitted to the Queen's Bench Division with a specific direction that the question of whether paragraphs 6 and 7 of Matusevich's letter constituted pure comment or contained defamatory statements of fact be left to a jury to determine. The respondent was ordered to pay the appellant's costs before Drake J., one-half of the costs in the Court of Appeal, and one-half of the costs in the House of Lords.
Ratio Decidendi
The central legal question was whether paragraphs 6 and 7 of the respondent's letter were capable of being regarded by a reasonable jury as statements of fact rather than mere comment or opinion. The distinction is of critical importance in the law of defamation because the defence of fair comment is available only where the words complained of constitute an expression of opinion or comment, not where they amount to assertions of fact. Where words may reasonably be read as statements of fact, the question of their true character cannot be withdrawn from the jury by the judge; it must be left for the jury to determine.
A further point of significance arising from this case concerns the basis upon which the fair comment defence must be evaluated. In assessing whether paragraphs 6 and 7 were comment, it was argued that a reader would have access to Telnikoff's original article and would therefore read the letter in its wider context. The House of Lords held, however, that the letter fell to be assessed as a standalone publication. Since the letter was published separately in the newspaper and would be read by many persons who had not read the underlying article, it was not permissible to require a reader of the letter to have knowledge of, or to read alongside, the original article. The words in paragraphs 6 and 7 therefore had to be assessed on their own terms, and were capable of being understood as assertions of fact rather than comment upon a known factual substratum.
Because Matusevich had pleaded fair comment but had not pleaded justification, the significance of this distinction was acute. If a reasonable jury could find that paragraphs 6 and 7 contained defamatory statements of fact rather than pure comment, the fair comment defence would not be available on those paragraphs and the defendant would have no other pleaded defence to fall back upon. Accordingly, it was not open to Drake J. to direct a verdict in the defendant's favour without first permitting the jury to resolve this foundational question of fact.
Obiter Dicta
Not applicable.