Joseph v Spiller [2010] UKSC 53

A dispute arose between musical performers and a booking agency over breach of contract. The agency posted defamatory comments on their website about the performers' professionalism. The Supreme Court considered the defence of fair comment in defamation law, clarifying that a comment need only identify its subject matter in general terms, not enable readers to evaluate the comment themselves.

Facts

The claimants were members of musical acts ‘The Gillettes’ and ‘Saturday Night at the Movies’. The defendants operated an entertainment booking service. Following disputes about alleged breaches of contract, including the claimants bypassing the defendants when accepting a re-engagement at Bibis restaurant, the first defendant published a posting on the company’s website stating that the claimants were ‘not professional enough’ and would not necessarily adhere to contractual obligations.

The posting quoted from an email sent by the first claimant, though the quotation was incomplete and arguably misrepresented the original meaning. The claimants brought proceedings for defamation.

Issues

The central issues before the Supreme Court were:

First Issue

Can defendants rely in support of a plea of fair comment on matters to which they made no reference in their comment?

Second Issue

Are the matters to which the defendants did refer in their comment capable of sustaining a defence of fair comment?

The Court also considered the requirements of the defence of fair comment more broadly, particularly Lord Nicholls’ proposition in Tse Wai Chun Paul v Albert Cheng that the comment must indicate the facts on which it is based so that readers can judge for themselves whether the comment was well founded.

Judgment

The Supreme Court allowed the appeal and reinstated the defence of fair comment. Lord Phillips delivered the leading judgment.

The Court rejected Lord Nicholls’ fourth proposition that the comment must indicate the facts on which it is based sufficiently for readers to judge for themselves whether it was well founded. Lord Phillips stated:

“I do not consider that Lord Nicholls was correct to require that the comment must identify the matters on which it is based with sufficient particularity to enable the reader to judge for himself whether it was well founded. The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did.”

The Court held that while the Landmarc breach could not be relied upon (as it was not referred to in the posting), the defendants could rely upon the Bibis breach and the first claimant’s email to support their defence of fair comment.

Lord Phillips proposed that the defence of fair comment should be renamed ‘honest comment’.

Implications

This case is significant for clarifying the requirements of the defence of fair comment (now ‘honest comment’) in defamation law. The key principles established include:

The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based – but it is not necessary that readers be able to evaluate the comment for themselves.

A defendant cannot rely on facts that were not referred to, even in general terms, by the comment.

The case also highlighted the need for potential legislative reform in defamation law, with Lord Phillips noting the complexity and archaic nature of certain aspects of the tort of libel and the unsuitability of jury trials in such complex matters.

Verdict: Appeal allowed. The defence of fair comment was reinstated. The defendants could rely on the Bibis breach of contract and the first claimant's email to support their defence, but could not rely on the Landmarc breach as it was not referred to in the posting.

Source: Joseph v Spiller [2010] UKSC 53