Associated Newspapers Ltd. v Keith Burstein

In a defamation claim, the meaning of the words must be identified before deciding whether the defence of fair comment applies. Whether words are fact or comment depends on their context and the impression conveyed to the ordinary reasonable reader.

An inference about a person’s motives may constitute comment where it is recognisably deduced from stated facts. A critical review, its evaluative language and its reliance on the reviewed work may provide an unmistakable badge of comment.

Fair comment requires sufficiently true supporting facts and an opinion which an honest person could hold on a matter of public interest. The opinion need not be reasonable, moderate or free from prejudice. Summary judgment is appropriate where no reasonable jury could reject the defence.

The publisher of the Evening Standard appealed from Eady J’s refusal on 13 October 2006 to grant summary judgment under Part 24 of the Civil Procedure Rules 1998. A composer and co-librettist had brought libel proceedings concerning a critical review of his opera about suicide bombers.

Eady J held that the review was capable of implying that the claimant sympathised with terrorists or applauded suicide bombers. He also held that a jury could classify the words as fact and could conclude that the reviewer’s opinion was not honestly sustainable. He nevertheless regarded success of the fair comment defence as very likely and struck out the plea of malice.

The appeal concerned the permissible meaning of the review, whether its words were fact or comment, and whether the requirements of a sufficiently true factual basis and an honestly held opinion were necessarily satisfied.

1. Appeal allowed unanimously. The publisher was entitled to summary judgment. The review was fair comment on a matter of public interest, and no reasonable jury could find otherwise.
2. The meaning that the claimant sympathised with terrorist causes and promoted that belief through his work was incapable of arising from any reasonable reading. Describing an opera’s theme as insulting did not imply that its creator held a particular motive or personal viewpoint. The narrower meaning that, through this opera, the claimant applauded suicide bombers and elevated them to heroism was just capable of arising and could be defamatory.
3. Meaning had to be addressed before fair comment. Where more than one meaning was in issue, the court had to identify the defamatory meaning to which the defence was said to apply. This corresponded with the requirement that a defendant specify the meaning defended as fair comment.
4. The surviving meaning was unmistakably comment. The final sentence drew an evaluative inference from the review’s preceding description of the opera. It appeared in an article which an ordinary reader would recognise as a critic’s subjective review and followed plainly evaluative expressions. An inference about an author’s motive or state of mind can remain opinion where it is drawn from disclosed factual material.
5. The factual foundation was sufficiently true. No material inaccuracy was identified in the review’s account of the opera. The work itself provided adequate material for the criticism.
6. The requirement of objective fairness asks whether an honest person could hold the opinion, not whether the opinion was reasonable. The law permits exaggerated, prejudiced and vehement criticism on matters of public interest, provided that the view can honestly be held and is not actuated by malice. The opera’s controversial subject matter could legitimately provoke the reviewer’s strong response.
7. Although meaning and fair comment are ordinarily matters for a jury, an appellate court must intervene where only one answer is available to a reasonable jury. Since the allegation of malice had been struck out and every element of fair comment was necessarily established, the defence was bound to succeed.

1. Court of Appeal (Civil Division): By [2007] EWCA Civ 600, unanimously allowed the publisher’s appeal and ordered summary judgment in its favour.
2. High Court, Queen’s Bench Division: Eady J refused the publisher’s application for summary judgment on 13 October 2006, although he struck out the claimant’s allegation of malice. No citation for that decision is stated.