Thornton v Telegraph Media Group Ltd

The defence of fair comment may apply to a review even where words could be understood as a factual inference, provided the context permits that interpretation. A reviewer may rely on extrinsic facts, and a work under review may itself identify the general subject matter of the comment. However, where the comment concerns the author’s research methodology rather than the quality of the work, readers must be given enough information to assess the factual basis and the reviewer’s criticism. A material misstatement of that basis may defeat fair comment under section 6 of the Defamation Act 1952.

The claimant, Dr Sarah Thornton, sued the publisher of a newspaper review of her book Seven Days in the Art World. The review stated that her interviewees had the right to read and alter what she wrote about them, comparing the practice to journalistic copy approval.

The defendant pleaded fair comment. The claimant applied to strike out that defence in relation to meanings alleging that her methodology was reprehensible and showed a lack of integrity. The issues were whether the words were capable of being comment and whether material factual misstatements made the defence untenable.

1. Application granted. The defence of fair comment was struck out because there was no realistic prospect of its succeeding. The relevant question on a strike-out application, particularly where a jury would try the action, was whether a contrary finding by the jury would be perverse.
2. Fair comment requires comment on a matter of public interest, recognisable as comment rather than fact, based on true or privileged facts, sufficiently indicating its factual basis, and capable of being made by an honest person. The review’s context was important. A literary review is ordinarily understood to contain subjective and potentially hostile commentary.
3. The words stating that interviewees had the right to read and alter the claimant’s writing were capable of being understood as the reviewer’s subjective interpretation of the claimant’s methodology. A jury finding that the words constituted comment would not have been perverse.
4. Section 6 of the Defamation Act 1952 permits fair comment where the opinion is fair having regard to proved facts, even if every factual allegation is not proved. The provision did not assist the defendant where the central assertion about the claimant’s methodology was materially misstated.
5. A reviewer may rely on extrinsic facts. Identifying the book being reviewed may sometimes sufficiently indicate the subject matter for comment on its literary or artistic merits. The position differs where the review makes assertions about the author’s treatment of interview material. Readers must be told, at least in general terms, what the author claims to do and why the reviewer is sceptical.
6. The review significantly misdescribed the claimant’s account of reflexive ethnography. The assertion was a free-standing material misstatement, and other passages in the review could not cure it.