Spiller & Anor v. Joseph & Ors

The Supreme Court today gave judgment in Spiller v Joseph [2010] UKSC 53, (available in html on BAILLI) a case concerning the scope of the fair comment defence to defamation. This is the first time since Jameel that the court has considered defamation, and the fair comment defence has not been considered by this court since Telnikoff v Matusevitch [1992] UKHL 2 (14 November 1991) (concerning the boundary between fact and opinion).

The background to the dispute is as follows. Spiller (the appellants) provides an entertainment booking service which Joseph and others – who are members of a musical group known as The Gillettes or Saturday Night at the Movies – appointed to promote their acts. Several arrangements were made. Of relevance here are a booking at the Landmarc Hotel arranged in December 2005 (“the Landmarc booking”), which was cancelled by the first claimant shortly after it was made, allegedly because the band had found a better offer, and an appearance at Bibis, a restaurant in Leeds. The contract included a re-engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants. The band then agreed to appear at Bibis again, three weeks later, without going through Spiller. When Spiller complained, Joseph emailed back, saying, ‘‘mearly (sic) a formality and holds no water in legal terms’ and that the other members of the band were not bound by the contract as they had not signed it. Following this interesting explanation of the law of contract, the appellants posted a notice on their website announcing that they were no longer representing the Joseph et al because they were ‘not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract’ and, further, that ‘following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of “contracts hold no water in legal terms” (27.03.07). For this reason it may follow that the artists’ obligations for your booking may also not be met….’. The wording of the appellants on the webpage is slightly different from that of the email, as the appellants referred to ‘contracts‘. The difference is whether, as the respondents claim, their disregard was for the re-engagement clause or, as the appellants argue, for contracts in general.

Thus the respondents issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform. The appellants relied principally on the defences of justification and fair comment. As regards the matter that ended up before the Supreme Court, the issue of fair comment, Eady J held the words in issue were not capable of being comment; and the comment was not upon a matter of public interest. The Court of Appeal upheld the striking out of fair comment. It held that the facts upon which the comment was said to be based were not sufficiently set out in the words complained of.

The leading judgment by the Supreme Court was given by Lord Philips, which considered the extent to which the repondent’s fair comment defence ought to be reinstated and to what degree. In so doing, the court considered the extent to which, if at all, the defence of fair comment requires that the comment complained of should identify the matter (or matters) to which it relates. The starting point is the five propositions set out by Lord Nichols in Tse Chun Paul v. Albert Cheng [2001] EMLR 777 (court sitting as Court of Final Appeal of Hong Kong) (paras 16-21):

1. the comment must be on a matter of public interest;
2. the comment must be recognisable as comment, as distinct from an imputation of fact;
3. the comment must be based on facts which are true or protected by privilege;
4. the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made – the reader or hearer ought to be in a position to judge for himself how far the comment was well-founded; and
5. the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.

Cheng concerned a sixth element: the need to show absence of malice. Spiller v Joseph concerned the fourth element. Lord Philips noted that this aspect of the test had been criticised in legal literature and also in other decisions (see Eady J in Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007] QB 580, para 57). The respondents here invited the Supreme Court to simplify and liberalise the common law of fair comment and interveners suggested that “fair comment” should be replaced by “honest comment”.

In reviewing the authorities, Lord Philips concluded that the test set out by Lord Nichols should be restricted so that it merely requires that ‘the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based’. There is no requirement that the reader ought to be able to judge for himself how far the comment was well-founded. He considered the situation with regard to the Internet (para 99):

What of a case where the subject matter of the comment is not within the public domain, but is known only to the commentator or to a small circle of which he is one? Today the internet has made it possible for the man in the street to make public comment about others in a manner that did not exist when the principles of the law of fair comment were developed, and millions take advantage of that opportunity. Where the comments that they make are derogatory it will often be impossible for other readers to evaluate them without detailed information about the facts that have given rise to the comments. Frequently these will not be set out. If Lord Nicholls’ fourth proposition is to apply the defence of fair comment will be robbed of much of its efficacy.

Thus, in the interests of allowing public discussion (or freedom of expression) the defence has been widened so that the commentator ‘should be required to identify at least the general nature of the facts that have led him to make the criticism’ (para 103). Lord Philips concluded by stating that Lord Nicholls’ 4th proposition should be restated thus:-

the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based (para 105)

The Supreme Court, whilst accepting that the area may well need reviewing, rejected the opportunity to engage in reform, suggesting instead that the matters should be one for a Law Commission. In this, it seems that commentators’ criticisms that the narrow point in issue here was an unsuitable vehicle to persuade the court to undertake a wide-ranging review of the law were well-founded.

Applying the restated law to the facts, the Court held that the respondents could not rely on the Landmarc booking as this was a matter not referred to, even in general terms, by the comment. By contrast, they could rely on the Bibis contract breach as the posting the subject matter of the claim sufficiently identified the breach as part of the subject matter of the comment, even though the breach was not particularised.


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