The UK Supreme Court revised the libel defense of “fair comment” to be a defense of “honest comment,” the Telegraph reported.
The update to the law reflects the Internet age’s effect on libel law, according to the Telegraph.
Fair comment “protected people from libel but only if they spelt out the facts on which their opinions were based so that readers could judge if it was fair,” the Telegraph reported. Honest comment requires that the comment “explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”
Several UK groups have advocated for libel reform, including Sense about Science and the Libel Reform Campaign. As StinkyJournalism wrote recently, Sense about Science and five other UK media groups published a libel law guide for bloggers and online commenters because they’ve seen a growing number of non-journalists being sued for libel.
“Today the internet has made it possible for the man in the street to make public comment about others in a manner that did not exist when the principles of the law of fair comment were developed, and millions take advantage of that opportunity,” Phillips is quoted as saying. “If [the current law] is to apply, the defence of fair comment will be robbed of much of its efficacy.”
Likewise, a fellow court member, Lord Walker, is quoted by the Telegraph as saying: “Many of the events and the comments on them are no doubt trivial and ephemeral, but from time to time libel law has to engage with them.”
“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 a comment or opinion].”
The court ruled on the matter because of a libel suit against music promoter Jason Spiller, the Telegraph explained. Spiller had called a music act “unprofessional” for “breach of contract” on his website.
In turn, Craig Joseph, “who runs” two musical groups – the Gillettes and Saturday Night at the Movies — filed a suit and claimed Spiller couldn’t rely on fair comment.
Spiller’s attorney, David Price, reportedly claimed that fair comment defense doesn’t apply in the 21st century.
“This defence was formulated in the 19th century and has now been dragged into the 21st century,” Price is quoted as saying. “The internet has empowered millions of people to publish for themselves and they don’t do that with a lawyer standing over their shoulder.”
Price also stated that the change from “fair comment” to “honest comment” removes some of the burden on the defendant, the Press Gazette reported.
“The practical effect of today’s judgment is the removal of the necessity to provide a full factual basis for opinions expressed when relying on a defence of fair comment,” Price reportedly said. “No longer is it incumbent on the defendant to provide the facts on which the comment is based in sufficient detail so as to leave the reader in a position to judge for himself how far the comment was well-founded. In recognition of this the Supreme Court has re-named the defence from ‘fair comment’ to ‘honest comment’.”
Looking forward, the Independent quoted Phillips as saying: “There is a case for reform. Would it not be more simple and satisfactory if in place of the objective test, the onus was on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it?”
The Guardian reported comments by a partner and head of media at UK law firm Russell Jones & Walker about possible changes to libel cases as a result of the defense revision. The partner, Sarah Webb, is quoted as saying.
“Whilst the Singh case widened the understanding of what was comment rather than an assertion of fact, today’s judgment states that the comment must now only explicitly or implicitly indicate at least in general terms the facts upon which it is based.”
iMediaEthics has reported on the Singh case previously. Simon Singh was sued for libel after criticized the British Chiropractics Association in a commentary article for the Guardian. This spring, a British appeals court ruled that scientific decisions shouldn’t be determined in court and allowed Singh to use fair comment as a defense in his ongoing libel case.
iMediaEthics has written to the Libel Reform Campaign asking for comment and will update with any response.