The Supreme Court has had a go at reforming libel. As so often with the juggernaut of common law, it’s not so much a handbrake turn, more a slight change of lane. The major point that comes out of the reform is that, if you are relying on fair comment, you should at the very least hint at the fact on which you base your comment; something that puts the interested reader on notice that there might be something more to it, rather than give the whole spiel with your opinion.
The facts of Spiller are, as ever with libel, simple. Mr Spiller is a promoter in the music business, Mr Joseph a singer in, and manager of, a couple of soul tribute bands. In March 2007 there was a bit of a spat over bookings Mr Spiller arranged, and Mr Joseph sent a rather tetchy email, stating that the contract between the two was so much legal nonsense and not binding. Mr Spiller therefore posted something on his website to state that Mr Joseph was not interested in honouring contracts; Mr Joseph (and his groups) sued.
In itself, surely a simple issue that could be dealt with very quickly. Alas libel practice has outstripped the law and it became a beano for lawyers. The defence threw in defences of justification (i.e. the website reported the truth) and fair comment (i.e. the website contained statements of opinion based on true facts). Mr Joseph had the defence of fair comment thrown out, a decision upheld on appeal. So Mr Spiller took it to the Supreme Court. Quite wisely, as a defence that what you say is true is often surprisingly difficult to prove.
The Supreme Court took the opportunity to offer some serious hints itself. It put the defence of fair comment back, although changing its name to “honest comment”, a sensible move given that many “fair” comments are patently unfair – but could honestly be held; even the most bigoted and prejudiced non-criminal comments are allowed, as part of the whole free speech shebang, so long as they are honestly held. It also went a little further generally. Lord Nicholls in the Hong Kong case of Cheng v Tse Wai Chun Paul [2001] EMLR 777 set out five elements of fair comment, and the Court adopted them, but varied the fourth condition a little – instead of the opinion having to set out explicitly the facts on which the comment is made, it’s enough to set out, or hint at, the gist. Especially if the facts are pretty public facts. The reader can always ask for more details if necessary. Which suited Mr Spiller in this case. He had not set out the full details of why Mr Joseph might not honour future contracts by including the full email trail and history of the bookings with Mr Joseph; his almost passing reference to there being a contract argument was enough.
The Court was invited to go further, and change the nature of the defence to an objective test (the man on the Clapham omnibus test, i.e. imagining what a neutral bystander looking at things might think was fair or honest, rather than interrogating the mind of the maker of the statement to see if they had a malicious motive), but the Court did not do so. That would have been a sharp deviation. The Court did suggest that the Law Commission should look at certain issues, e.g. how the Reynolds defence of responsible journalism should apply, but one area that might make a big impact was the suggestion that juries ought not be involved with libel cases. Certainly a jury trial adds to the expense, and sometimes juries come up with decisions that can be kindly described as mentalist; awarding Roman Polanski anything more than a penny for damage to reputation (given his criminal convictions) is hard to justify, yet he got £50k for a libel, and an Irish jury awarded a businessman over 8 million euros – a greater damages award he would have got than had he been paralysed from the nose down by a drink-driver – for a sleepwalk-based smear. As it is, although the case is being hailed as a major step forward, it’s not really; the sum total of its legal changes amount to (a) changing the name of a defence and (b) allowing the "defamer" to be brief.
The case is more interesting from a read-through as to how law changes over time. There’s a good discussion as to how fair comment evolved and why life is different now since landmark decisions such as Kemsley v Foot. The thing about juggernauts is that they may not move very quickly, but they tend to get there in the end.
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