For fair read honest
The defence of Fair Comment,
henceforth to be known as Honest Comment, has been strengthened to protect
internet bloggers from libel claims.
Just how nasty can you get?
Extract from Newsdesk Law:
“Cocky, fake, slimy, inelegant, ineloquent, charmless, witless, weird, sinister, glacially cold and luminescently remote, he may be the most chillingly repulsive politician of even this golden generation.”
Picked out above is Matthew Norman’s opinion of a Labour cabinet minister, written in the comment section of The Independent’s during the build-up to the 2010 general election. In style it follows closely the work of the Daily Mirror’s star columnist Cassandra (the late William Connor) who, long, long ago, described the celebrity pianist Liberace as:
“deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavored, mincing,..... an ice-covered heap of mother love.”
Neither very complimentary
- but mild compared with the venom unleashed in this paragraph submitted
by a theatre crit for a provincial town's listings magazine at Christmas,
the season of goodwill:
“ Despicable excuse for kids theatre and possibly the most morally shameless example of product placement EVER. Would you trust your kids with Ronald McDonald? We hate you Ronald. We REALLY F****** hate you."
The paragraph was spiked. But need it have been? After all, Lord Nicholls said in the Court of Appeal (Cheng v Paul) that malice in the shape of spite or ill-will by the writer need not necessarily negate the defence of Fair Comment.
He went on: "Actuation by spite, animosity, intent to injure or other motivation, whatever it may be, even if the dominant or sole motive, does not of itself defeat the defence of Fair Comment though it may be evidence from which a lack of genuine belief (thus making it dishonest) may be inferred."
And he summed-up:" Critics need no longer be mealy mouthed in denouncing what they disagree with "provided the objective limits of fair comment defence were established."
He defined the limits as:
Having said all that, the editor of the listings magazine was right to reach for the spike. Whether he would have to bin the paragraph now - post-Spiller - is another matter. Before the Spiller judgment the rant would not get the defence of Fair Comment because it neglected to give readers the facts upon which the rant was based. The reader had to be able to make his/her own mind up from the facts in, or implied, in the piece as to whether the criticism was justified. What were the facts which made Ronald so objectionable? The reader had to be told.
After Spiller the identification of Ronald McDonald in general terms, as a starting point for questioning the critic as to why he expressed the views that he did, is sufficient. What still has to be established is what "general terms" means.
All in the mind
The libel action by Richard Branson against journalist Tom Bowers resulted in a major change in the law affecting Fair Comment.
For the first time an allegation concerning the state of a person's mind can be defended as a comment.
Bowers wrote of Richard Branson:
" Sceptics will inevitably whisper that Branson's motive (for his
bid for the national lottery) is self glorification".
v Bower: CA judgment
The second can be labelled landmark. The Singh case had become a cause celebre for science journalism and prompted calls for reforms to the defamation law to keep it out of scientific disputes. The Lord Chief Justice's comments at the end of the judgement indicates that he too feels that reform is needed.
In Newsdesk Law
How the Mirror
put a label on the deputy prime minister