From fair to honest

The country’s most senior judiciary today took a step towards modernising media law for the internet age with the Supreme Court redefining ’fair comment’ as ’honest comment’.

Today’s ruling in Joseph v Spiller (see story),  means that the burden on defendants to prove the facts on which their comments have been made has been reduced.

In his ruling Supreme Court Justice Lord Walker said the defence needed to be updated for a modern age where information flows freely.

“It was,” he said, “a society in which writers, artists and musicians were supposed to place their works, like wares displayed at market, before a relatively small, educated and socially elevated class, and it was in the context of published criticism of their works that the defence developed.

“Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they’ve learned from television or the internet.

“Many of the events and the comments on them are no doubt trivial and ephemeral, but from time to time (as the present appeal shows) libel law has to engage with them.

“The test for identifying the factual basis of honest comment must be flexible enough to allow for this type of case, in which a passing reference to the previous night’s celebrity show would be regarded by most of the public, and may sometimes have to be regarded by the law, as a sufficient factual basis.”

For the first time since the Supreme Court was established last year media lawyers have been given an insight into how the court perceives media law in its current form. 

The court’s president Lord Phillips, who gave the substantive judgment, made his feelings perfectly clear: “The whole area merits consideration by the Law Commission, or an expert committee”, he said.

Showing that his thinking was in line with those media lawyers who appear before the court, Phillips went on to state: “Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre-empt issues from going before the jury.”

So important was the outcome of the case that three media organisations took the unusual step of joining together to intervene in the case in support of the appellants, who were attempting to use the fair comment defence.

Associated Newspapers, owner of the Daily Mail and The Mail on Sunday, Times Newspapers and Guardian Media Group (GMG) mandated Reynolds Porter Chamberlain (RPC) partner Jaron Lewis to intervene.

GMG director of editorial legal services Gill Phillips commented: “The Guardian intervened because the defence of fair comment is such a vital component of freedom of expression.”

Lewis welcomed the decision, stating: “It’s very significant that Lord Philips has now questioned whether it’s still appropriate having juries in libel cases.  Hopefully this will be picked up in the Government’s new Defamation Bill, a draft of which is promised in 2011.”

This decision will be seen as a victory for newspaper groups, but there has to be caution as well.

While many commentators suggest that the judiciary is switching its leanings towards the media and away from the claimant in its judgments, the lawyers working on such cases recognise that no such trend can exist.

As one lawyer put it: “Judges must act only on the facts before them, they can’t be seen to be favouring one side or the other.”

That said, media law is an area that attracts controversy and Mr Justice Eady became a hate figure for many Fleet Street editors, who felt his rulings had restricted freedom of speech when he was head of the juries list.

The drafting of the Defamation Bill will give all interested parties the opportunity to contribute to new legislation in the area.

Inevitably that will lead to more litigation as it is tested through the court, but this latest ruling shows the judiciary is taking a more progressive approach.