Page 55 - Law and the Media

Law and the Media
It does not matter that the comment was exaggerated or based upon the general prejudices
of the writer or broadcaster. It will not even matter if the writer or broadcaster is an unfair
and unreasonable person. As long as the opinion expressed is not such that no honest person
could have made such a comment, and is not motivated by malice, fair comment will operate
as a defence. In 1995, a wealthy Tory from Kent, Mrs Pinder-White, sued Jonathan Aitken
for describing her and her husband in a piece in a local newspaper as ‘dreadful enough’ to
play JR and Sue-Ellen Ewing in the TV soap Dallas. Pinder-White alleged that she was
effectively being compared with a high-class prostitute who was an alcoholic, and called the
article ‘a dreadful character assassination’. Aitken argued that the criticism contained
elements of irony and parody and was not meant to be taken seriously. Pinder-White was
cross-examined about the 10 Rolls-Royces owned during their marriage by her and her
husband, and was alleged to have travelled in a white one at election time. The jury decided
the criticism was harsh, but that it came within the bounds of fair comment.

The view expressed must be honest, fairly called criticism, and relevant to the facts (McQuire
v Western Morning News Co (1903)). It follows that unless facts exist that raise the question
of a man’s moral character, a personal attack on that man’s character will not be relevant
(Campbell v Spottiswoode (1863)). A personal attack may form part of fair comment, but
only if it is a reasonable inference to draw from the facts (Harris v Lubbock (1971)).

Malice
Although the defendant may set up a plea of fair comment, the defence will be defeated if
it is shown that the defendant was motivated by malice. Malice is an important concept in
the law of defamation. The meaning attributed to malice in the legal context is wider than
that given to the word in popular usage. Whilst it includes what most people who understand
to constitute malice, being spite and ill will, it also encompasses a dishonest or improper
motive, such as personal advantage or gain, provided it is the dominant motive for the
publication. The burden of proof is on the claimant to show that the defendant did not believe
what he published was true, or was reckless as to its truth. If the improper motive is
established as the dominant reason for the publication, the fact that the opinion was honestly
held will not save the defence. On the other hand, if the defendant can show that the
statement complained of has a meaning that was intended to be honest and without malice,
the defendant may rely on the defence (Loveless v Earl (1999)).

The leading case on malice is Horrocks v Lowe (1975), which involved a Labour local
authority councillor who delivered a stinging rebuke against one of this Tory rivals at a
council meeting, a forum in which speakers would normally be entitled to qualified privilege
against libel suits. The issue was fought all the way to the House of Lords on whether
qualified privilege was defeated by malice. The court ruled in favour of the defendant, and
laid down the following important principles on the question of malice:

1. In situations where fair comment, qualified privilege or justification in relation to
spent convictions would normally apply and an allegation of malice is made, the
motive with which the defendant made the defamatory statement is crucial. He will be
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