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Fair comment to Honest comment to Honest opinion.

October 12, 2012

The defence of comment has been developed in recent years and will become honest opinion when the Defamation bill becomes law shortly. Previously fair comment it was restated and renamed honest comment in the case of Spiller & Anor v Joseph & Ors [2010] UKSC 53

  1. The comment must be on a matter of public interest.
  2. The comment must be recognisable as a comment, as distinct from an imputation of fact.
  3. If it is one of fact, a defence must be sought by way of  justification or privilege.
  4. The comment must explicitly or implicitly indicate in general terms the facts on which it is based.  The reader needs to be in a position to judge how far the comment was well founded.
  5. The comment must be one which could have been made by an honest person, however prejudiced, however exaggerated, or obstinate his views.

An example was given in the case of Myerson v. Smith’s Weekly (1923) 24 SR (NSW):

 “Dislike of an artist’s style would not justify an attack upon his morals or manners.  But a critic need not be mealy mouthed in denouncing what he disagrees with.  He is entitled to dip his pen in gall for the purposes of giving criticism.”

The burden of showing comment is on the Defendant.  The Defendant is not allowed to rely on the defence of “fair comment” if the comment was made maliciously.  The burden of showing malice shifts to the Claimant.

An extraordinary amount of case law has developed over the question whether statement or comment.  To say that a man’s conduct is dishonourable is a statement of fact with comment on the conduct.

The comment must be based on facts which the defendant was justified.  Obviously to comment on facts which were not true would not succeed.

The fourth proposition was revised by the court in Spiller.   In that claim the Claimant said the Defendant couldn’t rely on facts which were not referred to in the original article.  The court said that was not the case, and stated that the comment should identify the matter or matters which it relates.

The draft Defamation bill renames once again the defence to honest opinion.

It follows the law as in Spiller on the whole.  However whilst going through Parliament, the Committee decided to remove reference that the comment must be on a matter of public interest.

The bill as it stands today, after its third reading in Parliament, is now going to the House of Lords.   The following three conditions now have to be met:

  • the statement complained was a statement of opinion;
  • the statement complained of indicated, whether in general, or specific terms, the basis of the opinion; and
  • That an honest person could have held the opinion on the basis of:
  1. any fact which existed at the time the statement complained of was published; and
  2. anything asserted to be a fact in a privileged statement published before the statement complained of.

The defence is defeated if the claimant shows that the defendant didn’t hold the opinion.

The above section doesn’t apply where the statement complained of was published by the defendant, but made by another person, the author, and in such a case the defence is defeated if the claimant can show the defendant knew or ought to have known the author didn’t hold the opinion.

You can see the requirement of public interest has been removed.  The balance is now simply that the defence is defeated if you are able to show the defendant didn’t hold the opinion.

For advice as to Libel and Slander call Carruthers Law today or fill in one of our enquiry forms.