Page 53 - Law and the Media

Law and the Media
Public interest
It is for the defendant to prove that the matter upon which he passed comment is one of
public interest. The judge, rather than the jury, rules on this question if it is at issue. There
is a difference between matters that the public find interesting and matters of public interest.
The court has adopted a generous approach in defining the legitimate areas of public interest.
In the words of Lord Denning in London Artists Ltd v Littler (1969):

Whenever a matter is such as to affect people at large, so that they may be
legitimately interested in, or concerned at, what is going on, or what may happen
to them or others; then it is a matter of public interest on which everyone is entitled
to make fair comment.

National and local government and politics, all forms of art, literature and entertainment, and
court cases are all matters of public interest. So too are the individuals who appear in those
various arenas. Attacks on the individuals involved may be the subject of valid comment so
long as they are directed at the work or performance rather than being personal attacks.

Anyone seeking public attention, for example by protesting or writing open letters to
newspapers, is a valid subject for comment, as is the conduct of those whose activities affect
a significant number of other people, for example employers, charities, managers and
directors of companies – and the media.

The comment must be comment
The defence of fair comment undoubtedly gives critics and public commentators a wide
licence to write or say whatever they think about matters that are in the public eye:

A critic is entitled to dip his pen in gall for the purpose of legitimate criticism; and
no-one need be mealy-mouthed in denouncing what he regards as twaddle, daub or
discord.
(Gardiner v Fairfax (1942))

However, critics are not entitled to make derogatory statements in the guise of criticism. If
the court deems that what has been said is a factual statement rather than an expression of
opinion, fair comment cannot protect the defendant. In 1985 the actress Charlotte Cornwell
sued the Sunday People and its television critic Nina Myskow over an article in which
Myskow reported that Cornwell, ‘can’t act, she can’t sing and she has the sort of stage
presence that jams lavatories’. Myskow also candidly remarked of Cornwell, ‘her bum’s too
big’. The defendant argued that the statements were robust comment on the actress’s
performance rather than assertions of fact. The jury disagreed and awarded Cornwell £10 000
in damages. The defendant successfully appealed the verdict on other points of law, but a
second jury awarded Cornwell £11 500. However, it was a classic pyrrhic victory. Cornwell’s
pride was restored, but she was left with a huge costs bill for the first trial and appeal.
Reasonable estimates put her at about £50 000 out of pocket as a result of the litigation.
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