I Was Just Making A Comment ! Honest!

One of the most familiar defences in defamation law has long been the defence of "fair comment". It has always been thought of as a bastion of free speech in this country. As most people are aware, "fair" was not really the point: someone making a comment could have a defence even if the comment seemed unfair and was quite extreme and robustly expressed, as long as it was honestly expressed and based on accurate facts.

What facts? and How far do the facts need to be set out alongside the comment? were the questions dealt with in the recent case before the Supreme Court dealt with the question

A case in 2001 suggested that the commentator must set out alongside the comment a sufficient statement of the underlying facts to enable the reader to make a judgement as to whether the comment was well-founded.

In a judgment on 1 December 2010, the Supreme Court (formerly the House of Lords) clarified the position.

The case was called Spiller & Another v Joseph & Others [2010] UKSC 53. It concerned the aftermath of a dispute between musical performers (the claimants) and their promoters (the defendants). The latter posted on their website some wording which the claimants complained about.

In deciding whether the defendants could rely on the defence of Fair Comment, the Supreme Court reviewed the law and decided as follows:

The name of the defence should from now on be "Honest Comment". The publication in question only has to indicate in general terms the facts on which the comment is based. The reader does not have to be able to judge for him or herself to what extent the comment was well founded. There must be a sufficient indication of the factual basis so that "the...