Keays v Guardian Newspapers Ltd. & Ors

Whether words are fact or comment is determined by the article as a whole and its context. A journalist’s inference about a person’s motives may constitute comment, even where it describes an alleged state of mind. Where the article identifies the facts or published material from which the inference is drawn, readers can assess the basis of the comment for themselves. A judge must prevent a fact-versus-comment issue proceeding to a jury where it would be perverse to classify the words as factual. The offensiveness of the language, malice, and the merits of the fair comment defence are separate questions. A person who enters the public arena may expect scrutiny and comment about motives, subject to the applicable good-faith and objective tests.

The claimant brought a libel action against the publisher, editor and author of an article in the Observer’s Comment section. The article criticised the claimant’s media publicity concerning her daughter and inferred that she had exploited her daughter and acted from motives of revenge. The claimant pleaded meanings alleging cynical exploitation, lying about the inevitability of publicity, and a sexually explicit kiss-and-tell story.

The defendants applied for a ruling that the words were capable only of being comment and could not be treated as factual allegations requiring justification. The court was not asked to determine the meanings, the objective fair-comment test, or malice. The issue was whether a jury would be perverse to classify the defamatory imputations as factual.

1. Issue and governing approach. The application was confined to the fact-versus-comment issue. The court considered the whole article in context, as it would be understood by a reasonable reader, rather than the pleaded meanings in isolation. Earlier publicity was not used as background evidence independently of the article, but the article itself referred to and responded to that publicity.
2. Inference as comment. The article was plainly labelled as a Comment piece and responded to a recent body of published material. Its observations about the claimant’s motives were inferences from matters in the public domain, not assertions of independently verifiable fact. The fact that a state of mind may be true or false does not prevent an inference about it from being comment.
3. Judicial control of the issue. The test was whether a jury would be perverse to classify the words as factual. Jurors should not be treated as having a different analytical test from judges, although meaning may involve a wider range of reasonable impressions. Where an unmistakable badge of comment is present, it is the judge’s positive duty to prevent the issue proceeding to trial.
4. Fair-comment considerations. The court did not decide whether the comments were honestly made, whether an honest person could have expressed them on the known facts, or whether there was malice. Those matters belonged to the appropriate later stage. The court also held that the reference to a kiss-and-tell story was an evaluative description of material published in The Times.
5. Disposition. The defendants’ submissions were upheld. The article was held to be a clear comment piece, and a jury would be perverse to classify the defamatory imputations as factual allegations requiring objective verification.