Lowe v Associated Newspapers is a significant decision for the law of fair comment

Many commentators believe that a judgment given in February 2006 by Mr Justice Eady in the case of Lowe v Associated Newspapers could be one of the most important decisions in the past year for the development of the law of defamation and may encourage more media defendants to rely on the defence of fair comment.

To be successful in a defence of fair comment, the defendant must show that the words complained of are comment (and not fact), that the comment is honestly held by the commentator and is based on true facts sufficient to support the comment.

In this case, the claimant had applied to strike out the defence on the basis (among other things) that the facts relied on by the defendant in support of its defence of fair comment were not referred to expressly or implied in the article. The claimant submitted that this should be the case so that readers of the article had sufficient factual material at the time of reading the article to assess the comment. The claimant had legal authority on their side in the guise of the opinions of Lord Nicholls in Reynolds v Times Newspapers [2001] and Tse Wai Chun Paul v Cheng [2001] and it was generally accepted by the courts that that was the legal position.

The verdict

However, Mr Justice Eady, relying on the case of Kemsley v Foot [1952], found in favour of the defendant. He stated that a comment may be made, if the matter is already before the public, without setting out the facts on which comment is based in the article. The defendant only had to make clear in the article the subject matter of the comment. This is a far less restrictive interpretation than was previously thought to be the case following Lord Nicholls' opinions.

Mr Justice Eady went on to consider whether a defendant may plead facts in support of a plea of fair comment even though he was unaware of them at the time when he expressed the comment (he did this even though this did not form part of the claimant's application and despite the fact that he had not heard submissions on this point).

He concluded that:

. any facts pleaded to support fair comment must have existed at the time of publication;

. any such facts must have been known to the commentator at least in general terms at the time the comment was made and the test that should be applied is, could someone have expressed the commentator's defamatory opinion upon those facts (he held this was an objective test);

. a general fact within the commentator's knowledge may be supported by specific examples even if the commentator had not been aware of them;

. a commentator may rely on a specific or general fact even if he has forgotten it;

. a defendant who is responsible for publishing the defamatory opinion of a commentator (such as in a newspaper column or letters pages) does not have to show that he, she or it also knew what the facts relied on were, provided they were known to the commentator; and

. it is not permitted to plead fair comment if the commentator was doing no more than regurgitating the opinions of others without any knowledge of the underlying facts.

It is hoped Mr Justice Eady's decision that a defendant can rely on facts not referred to in the article will give some comfort to defendants who have previously been reluctant to plead a defence of fair comment. As for the commentator's knowledge, many legal experts believe that it should not be a requirement when you plead a defence of fair comment to have to show that a commentator knew in general terms facts relied on in support of the comment and that, on the contrary, a defendant should be entitled to rely on facts which existed at the date of publication, whether known to the commentator or not.

As Associated Newspapers stated in its notice of appeal (which has been discontinued as the case has now settled), it has been settled law since the law of fair comment developed into a defence independent of qualified privilege, that to establish the defence of fair comment, the burden is on a defendant to prove that the comment passes the following objective test: could any man, however prejudiced and obstinate, honestly express that opinion on the proved facts?

Associated Newspapers submitted that provided the words were recognisable as comment on a matter of public interest, the only remaining subjective question was whether the defendant was actuated by malice (the burden of proving which issue was on the claimant, and in relation to which the sole question is whether or not the comment was the honest expression of the commentator's opinion). Associated Newspapers therefore submitted that the defendant's state of mind in the absence of malice was therefore irrelevant.

Niri Shan is a partner specialising in media law at Taylor Wessing and was the solicitor acting for Associated Newspapers in this case.