Dear Colleagues,

The UK Supreme Court has given judgment in Spiller v Joseph [2010] UKSC 53 (http://www.supremecourt.gov.uk/docs/UKSC_2009_0210_Judgment.pdf), on the issue of "the extent to which, if at all, the defence of fair comment requires that the comment should identify the matter or matters to which it relates." The case arose from a spat between a band and their promoter, and an indignant posting on the defendant's website about the band's alleged lack of professionalism and respect for contracts.

Lord Phillips conducts a lengthy survey of the law of fair comment, and modifies Lord Nicholls' "fourth proposition" of the defence in the Hong Kong case of Cheng [2001] EMLR 777, which was that


"the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded."


The modification is that, instead


“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”



Lord Phillips notes that the Supreme Court was invited to rewrite the defence of fair comment quite radically, adopting a purely objective test of whether relevant facts existed. Defences to defamation have been a major issue over the last ten years, partly as a result of what have been perceived to be claimant-friendly recent judgments, some of which have been circulated on this list. The analysis considers the appropriateness of judicial reform of the law in this area, and Lord Phillips declines to develop it radically:



[117] These are difficult questions. Some may have to be resolved judicially, but the whole area merits consideration by the Law Commission, or an expert committee. There is only one reform that I would seek to make by this judgment – it is one that has already received judicial approval – see Lord Nicholls in Reynolds [2001] 2 AC 127, 165. The defence of fair comment should be renamed “honest comment”.


The law of defamation is currently being considered by the UK Government with a Bill to follow next year.
Best wishes,

James

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James Lee
Lecturer
Director of Careers
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B152TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk