Spiller and another v Joseph and others

The defence of honest comment requires the publication to identify, expressly or by implication, at least the general facts on which the comment is based. It need not provide enough detail for readers to decide whether the opinion is justified. The degree of identification required is contextual and flexible.

A defendant cannot rely on conduct falling outside the subject matter indicated by the publication. Where several supporting matters are alleged, the defence may nevertheless survive if at least one proved matter sufficiently supports the comment. A material misstatement does not invariably defeat the defence under section 6 of the Defamation Act 1952. The defence remains subject to the requirements that the words are recognisable as comment, concern a matter of public interest, have a true or privileged factual basis, are pertinent, and represent an honestly held view.

The respondents were performers whose acts had been promoted by the appellants' entertainment-booking business. Following disputes about contractual obligations, the appellants posted a warning on their website describing the respondents as unprofessional and suggesting that they might not honour bookings. The respondents brought defamation proceedings.

Eady J struck out the defence of fair comment, although he permitted the defence of justification to proceed. The Court of Appeal, [2009] EWCA Civ 1075; [2010] ICR 642, declined to reinstate fair comment. It held that the appellants could not rely upon an earlier alleged breach and could not rely upon a misquoted email or an insufficiently identified contractual breach.

The central questions were whether honest comment could be supported by matters not referred to in the publication and whether the matters actually indicated were capable of supporting the defence.

1. The appeal was allowed unanimously and the defence of honest comment was reinstated. Lord Phillips delivered the leading judgment. Lord Rodger, Lord Walker, Lord Brown and Sir John Dyson agreed with his reasons. Lord Walker added observations about applying the defence flexibly to modern communications.

2. The established elements of fair comment remained applicable, but the defence should be called honest comment. The publication must be recognisable as comment, concern a matter of public interest, rest on true or privileged facts, be pertinent to its subject matter, and represent a view an honest person could hold. The claimant bears the burden of proving the dishonesty which defeats the defence.

3. The fourth proposition stated in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 was too demanding. The publication need not give readers enough information to evaluate whether the comment is well founded. Consistently with Kemsley v Foot [1952] AC 345, it is sufficient that the comment expressly or implicitly indicates, at least in general terms, the facts on which it is based. The requirement enables readers to understand the subject of the criticism and enables the commentator to particularise its factual basis if challenged.

4. The factual basis must remain within the subject matter identified by the publication. A defendant cannot support the defence with an unrelated fact which was neither stated nor generally indicated. Section 6 of the Defamation Act 1952 did not authorise reliance upon facts which were neither alleged nor referred to in the words complained of.

5. The earlier Landmarc cancellation was not referred to expressly or generically and could not support honest comment. The posting did, however, refer to the Bibis contractual breach. The appellants were therefore entitled to rely upon that breach even though the contract and its particular term were not identified.

6. The misquotation of the respondent's email did not necessarily make the defence unavailable. A jury could conclude that the email as published did not differ significantly, for the relevant purpose, from the email actually sent. If the jury found a significant difference, it should disregard the email; otherwise, it could consider the email when determining honest comment.

7. The wider proposed reforms—including reliance on unknown, unrelated or later facts—went beyond proper incremental development of the common law. Those questions were left for legislative or expert consideration.

1. United Kingdom Supreme Court: In [2010] UKSC 53, unanimously allowed the appellants' appeal and reinstated the defence of honest comment.
2. Court of Appeal: In [2009] EWCA Civ 1075; [2010] ICR 642, declined to reinstate fair comment. It upheld the striking out of that defence.
3. High Court: Eady J struck out the defence of fair comment on 22 May 2009. He declined to strike out justification and permitted additional particulars concerning later conduct.