Fair Comment by the House of Lords?
| Author | P.J. Sutherland |
| Published date | 01 March 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01877.x |
| Date | 01 March 1992 |
7he
Modern
Law Review
[Vol.
55
assuming that heterosexual families
will
be more problem-free. Social science
research on the topic increasingly lends support to this view.44 This would be a
significant step towards the de-privileging of the heterosexual white middle-class
nuclear family
in
social and legal policies.
Fair
Comment
by
the
House
of
Lords?
P.
J.
Sutherland
*
The defence of fair comment is generally regarded as the bulwark of free speech
in
the law of defamation. When a defamatory statement represents an expression
of opinion or comment as opposed to a statement of fact, fair comment gives
a
complete defence provided it is proved that the opinion is fair, that
it
is based on
facts which are true and that it concerns a matter of public interest.’ In
Telnikoff
v
Matusevirch,*
the House of Lords formulated the correct approach to determining
whether a statement should be classified as comment rather than fact, and adopted
a restrictive view. In the same case, however, the protection afforded by the defence
to statements classified as comment has been bolstered by the adoption of a wholly
objective test of fairness.
In
Telnikoff,
the plaintiff wrote an article
in
the
Daily Telegraph
criticising the
BBC’s Russian Service for over-recruiting from Soviet ethnic minorities.
In
a heated
reply published
in
the same newspaper, the defendant accused the plaintiff of racism.
In
particular, he remarked that the plaintiff had demanded that the ‘BBC’s Russian
Service should switch from professional testing to a blood test.’ The trial judge
dismissed the plaintiffs claim in defamation before the defendant had given evidence,
on the ground that any reasonable jury would be bound to uphold the defendant’s
plea of fair comment. On appeal,
it
was held by a majority of the House of Lords
that,
in
determining whether a statement
in
the defendant’s letter constituted fact
or comment, the letter must be considered without reference to the original article
for context. Since, on this approach,
it
would have been open for a reasonable jury
to
conclude that the defendant’s statement did represent an allegation of fact, the
appeal was allowed.
Fact or Comment?
The defence of fair comment was last considered
in
detail by the House of Lords
some forty years ago
in
Kemsley
v
Foor,’
when Lord Porter stated that the defence
only applies to statements
in
which a substratum of facts is indicated with sufficient
clarity.
If
so,
these facts may then
be
referred to
in
determining whether the comment
is fair.4
In
Telnikoff,
Lord Keith, with whom Lords Brandon, Templeman and
44
*School of Law, King’s College London.
See Tasker and
Golombok, op
cit.
I
2
119911
3
WLR 952.
3
[
19521 AC 345.
4
ihid
357.
The defence is negated, however, if the plaintiff
is
able
to
prove that the defendant acted with express
nialice.
278
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