Page 54 - Law and the Media

Defamation
It can be difficult to distinguish comment from fact disguised as comment. In order to be fair
comment, the comment must not be so mixed up with facts that the recipient cannot distinguish
between what is a report and what is comment (Hunt v Star Newspaper (1908)). Using
introductory statements such as ‘in my opinion’ or ‘it is my view that’ will help identify the
statement as comment, but will not necessarily be conclusive. If there is any doubt, the judge
will rule on whether the statement is reasonably capable of being comment and the jury will
make the decision as to whether it actually is (Aga Khan v Times Publishing Co (1924)).

Based upon facts that are true or privileged
The comment must have an adequate factual basis. The facts must be stated sufficiently
clearly in order to enable the recipient to consider those facts. The court takes the view that
unless this is done the recipient cannot know that the comment is well founded or even that
it is comment rather than an assertion of fact.

In Kemsley v Foot (1952) Michael Foot wrote a piece in the Tribune newspaper under the
headline ‘Lower than Kemsley’. In the piece, Foot savagely criticized an article published in
the Evening Standard the previous week as ‘the foulest piece of journalism perpetrated in this
country for many a long year’. Kemsley was a well-known newspaper proprietor, but in fact
had no connection with the Evening Standard. Kemsley claimed that the headline suggested
his name was a byword for dishonest journalism. However, the House of Lords ruled that the
headline was a statement of opinion rather than one of fact, and that the factual basis for this,
being the existence and conduct of Kemsley’s newspapers, was sufficiently indicated.

If the stated facts upon which the defendant has based the comment are false, those facts
must have been published on a previous occasion that was privileged for the law to recognize
the piece as fair comment. However, where a piece has set out a number of facts upon which
comment is made, some of which are true and some of which are false, the defendant may
be able to rely on Section 6 of the Defamation Act 1952 as a defence if the expression of
opinion is fair comment having regard to facts that the defendant can prove.

Unlike justification, the defendant may only rely on existing facts in support of his contention,
not matters that occur after the publication (Cohen v Daily Telegraph Ltd (1968)).

What is fair?
The test of what is fair is an objective one. It does not require the jury to ask themselves
whether they agree with the comment; instead, they must ask themselves whether any fair-
minded person, however prejudiced or exaggerated in his views, could have made the
comment having knowledge of the proved facts. The emphasis is therefore on honesty rather
than fairness:

. . . the observations of an honest man on a matter of public interest may be fairly
regarded as comment, so as to attract the defence, even though the essence of his
comment was grossly unfair.
(Telnikoff v Matusevitch (1992))
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