Supreme Court Backs Freedom of Speech Online – Spiller v Joseph [2010] UKSC 53

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In Spiller & Anor v Joseph & Ors [2010] UKSC 53 the UK Supreme Court, in a unanimous judgement, has upheld the right of the defendants to claim the defence of fair comment in relation to a comment an entertainment booking agent made on its website about a band to the effect that the band was unprofessional.

In doing so, the Supreme Court overturned the judgement of the Court of Appeal rejecting the defendants’ claim of fair comment, and took up the invitation of Counsel for media organisations (which had intervened in the case) to re-name the defence ‘honest comment’.

Britain’s libel laws, which are in the process of being re-drafted, by Lord Lesterfield’s Bill, and have been criticised as being archaic, the defence of fair comment overly technical and not as widely available as it could be to protect free speech.

The Court of Appeal surveyed the history of cases dealing with fair comment from the nineteenth century, with the Supreme Court recommending the contours of the fair comment defence should be a matter for review by the Law Commission or a committee qualified to evaluate the proper boundaries of the defence.

The defamatory comment the subject of review was as follows:

Events is no longer able to accept bookings for this artist as The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract.

The five elements which comprised the elements of the defence of fair comment had been set out in the judgement of Tse Wai Chun Paulv Albert Cheng [2001] EMLR777 in which the Court had held: “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 Court concluded that a more appropriate formulation would be as follows:

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

The majority concluded that in this particular case the website posting alluded to what was a contemptuous attitude towards the issue of contractual obligations of the claimants in fulfilling same. If there was any discrepancy between the contents of an email and the posting it was up to the jury to decide whether it would make any material difference to any finding that they may arrive at in respect of whether the comment qualified for fair comment.

The most recent occasion upon which the House of Lords had an opportunity to consider the defence of fair comment was in Telnikoff v Matusevitch [1992] since which time the defence had been considered on several occasions by lower courts.

The Court therefore restored the defence of fair comment which had been removed by Eady J in the lower court. Eady J had held that a fair comment defence was not available as the allegations were fact not comment and there was no element of public interest.

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