Comment must be 'honest' – it doesn't have to be 'fair'
There has been a significant development to defamation law that publishers, particularly those of online editorials and blogs, are likely to welcome, writes Oliver Sweeney, solicitor at Browne Jacobson LLP.
In Spiller Vs. Joseph, the Supreme Court clarified when publishers can use fair comment, renamed by the judges as ‘honest comment,’ as a defence in court.
The court ruled it is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded.
Instead, an honest comment ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”.
However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.
Let’s take an example. On his blog, a branding consultant publishes a comment that a certain marketer is “ a disgrace to his profession.” As the author of this claim, the consultant must make clear why he has reached it. Is it because the marketer’s work is shoddy, or that he does not read any project briefs, or that he never turns up to meetings?
As the publisher, if the consultant does not indicate, at least in general terms, that their comment is (wholly or partially) based on the fact that, say, the marketer never turns up to meetings, then the consultant/publisher cannot later rely on that particular fact to support a defence of honest comment. The defence would also fail if, at the time the piece was published, the publisher/consultant did not know that the subject (the marketer) did not turn up to meetings.
Still, under this test for ‘honest comment,’ the publisher is not required to provide as much detailed background information as they had to previously, in order to succeed with the defence.
However the extent of what will satisfy (presiding judge) Lord Phillips' requirement for the supporting facts to be set out in "general terms" is not very precise as yet. So, as the above example of the consultant and the marketer illustrates, it will still be good practice for publishers to at least explain the context of any comment they make.
Overall, publishers and proponents of free speech will be pleased with the court’s clarification, which allies the defence more closely with the realities of publishing on the internet, in editorials and in blogs. It also makes a little progress towards the more robust reform position proposed in the Defamation Bill. Yet it might also serve to make the judicial process for persons defamed in unbalanced attacks more difficult.