Joseph v Spiller [2010] UKSC 53

A music services company posted criticisms of a band on their website. The band sued for libel. The Supreme Court clarified the defence of 'honest comment', ruling that the comment need only identify the subject matter, not repeat all underlying facts.

Facts

The appellants were professional musicians in a group called ‘The Gillettes’. The respondents ran a company, ‘APL’, which provided services to the entertainment industry, including an online directory and booking services. The appellants were listed on APL’s website. A dispute arose over a booking, leading APL to post a notice on its website stating the appellants were in breach of contract for a specific engagement. The key part of the notice read: ‘we are not booking The Gillettes anymore because they have let us down and mess us about’. The appellants brought a claim for libel, arguing the words were defamatory.

Issues

The central legal issue before the Supreme Court was the correct formulation of the defence of fair comment (which the court preferred to call ‘honest comment’) in the law of defamation. Specifically, the court addressed the requirement that the comment must indicate the facts on which it is based. The key question was whether the facts had to be explicitly stated or detailed in the publication itself, or if it was sufficient for the publication to provide a general indication of the facts, allowing the reader to understand what the comment was about.

Judgment

The Supreme Court unanimously allowed the appeal but ultimately upheld the Court of Appeal’s decision that the defence of honest comment was available to the respondents. The judgment, delivered by Lord Phillips, took the opportunity to restate and clarify the elements of the defence.

Restating the Defence of ‘Honest Comment’

Lord Phillips expressed a preference for the term ‘honest comment’ over ‘fair comment’, as fairness is a subjective measure, whereas the true test is the honesty of the opinion. He stated:

I would… re-name the defence of fair comment. It is, and always has been, a defence of honest comment.

The Elements of the Defence

The court set out a modernised test for the defence of honest comment, which required that:

1. The statement complained of must be comment, not fact.

2. The matter on which the comment was made must be in the public interest.

3. The comment must be based on facts which are true.

4. The comment must be one which an honest person could have held.

The Factual Basis of the Comment

The most significant part of the judgment clarified the degree to which the factual basis of the comment must be identified. The court rejected the old, stricter requirement that the reader must be in a position to evaluate the comment for themselves based on the facts provided in the publication. Instead, a more relaxed test was established. Lord Phillips clarified:

In order to be recognisable as comment, the statement in question must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. … It is not a requirement of the defence of fair comment that the reader should be in a position to evaluate the comment for himself.

Applying this test, the court found that the notice on APL’s website did sufficiently identify, in general terms, the facts on which the comment was based – namely, the appellants’ conduct in relation to a specific contractual engagement. Therefore, the defence of honest comment could be relied upon.

Implications

The decision in Joseph v Spiller is highly significant for modernising the common law defence of honest comment. By loosening the requirement for the publication to detail the facts underpinning an opinion, the court better aligned the law with the realities of modern communication, particularly online media like blogs and forums where brevity is common. This judgment strengthened the protection for freedom of expression, making it easier to publish honest opinions on matters of public interest without fear of successful libel action, provided the general subject matter is identified. The principles laid out in this case heavily influenced the subsequent statutory defence of ‘honest opinion’ codified in section 3 of the Defamation Act 2013.

Verdict: The appeal was allowed, but the Supreme Court upheld the Court of Appeal’s conclusion that the respondents were entitled to rely on the defence of honest comment based on the newly clarified legal principles.

Source: Joseph v Spiller [2010] UKSC 53