From: Neil Foster <Neil.Foster@newcastle.edu.au>
To: James Lee <j.s.f.lee@bham.ac.uk>
CC: obligations@uwo.ca
Date: 01/12/2010 22:22:55 UTC
Subject: Re: UK Supreme Court on Fair - now Honest - Comment
Thanks James, very interesting decision.
If defamation is the "Galapagos Islands Division" of the law of torts (see Justice David Ipp, ‘Themes in the Law of Torts’ (2007) 81 Australian Law Journal 609), then it seems that even the individual islands retain a tendency not to consult with each other. While the Australian common law of defamation has diverged from the UK version since we chose not to adopt Reynolds, the issues of "fair comment"/"honest comment/opinion" are still wrestled with over here, and the High Court of Australia decision in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 has a lot of interesting material on how much information needs to be contained in the context for a
 defendant to be able to rely on the defence. The majority held that ‘the facts on which the comment is based [must be] sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded', a test which is stricter than that adopted by the UK Supreme Court here. The minority opinion of Kirby J might be regarded as closer to the view expressed in Spiller.
Regards
Neil

On 01/12/2010, at 9:38 PM, James Lee wrote:

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

--
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

 Neil Foster
Senior Lecturer, LLB Program Convenor,
Newcastle Law School Faculty of Business & Law
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