Supreme Court brings libel law into internet age

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The Independent Online

Bloggers, tweeters and other internet users who post instant criticisms of artists, politicians and television shows have been granted new protection from libel claims.

The Supreme Court strengthened the defence of "fair comment" yesterday, bringing the law into line with the age of the internet and 24-hour broadcasting. Under the ruling, it is no longer necessary for defamation defendants to prove all the facts upon which their comment or criticism was made.

The case involves an ongoing dispute between a booking agency and a covers band called The Gillettes. Craig Joseph and fellow members of his group are suing Jason Spiller and his booking agency, 1311 Events Ltd, for defamation over material posted on the agency's website.

The posting said: "1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract."

The agency pleaded both justification and fair comment, but when it came to the High Court, Mr Justice Eady struck out the fair comment defence. The Court of Appeal declined to reinstate it, and the case moved on to the Supreme Court, which reinstated it yesterday.

In his comments on the judgment, Lord Walker said: "The defence of fair comment (now to be called honest comment) originated in a narrow form in a society very different from today's. It was a society in which writers, artists and musicians were supposed to place their works, like wares displayed at market, before a relatively small, educated and socially elevated class, and it was in the context of published criticism of their works that the defence developed."

He added: "Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they have learned from television or the internet."

Mr Spiller's solicitor David Price said yesterday: "The practical effect of the judgment is the removal of the necessity to provide a full factual basis for opinions expressed when relying on a defence of fair comment.

"No longer is it incumbent on the defendant to provide the facts on which the comment is based in sufficient detail so as to leave the reader in a position to judge for himself how far the comment was well founded. In recognition of this the Supreme Court has re-named the defence from 'fair comment' to 'honest comment'."

However, the Supreme Court rejected invitations from Mr Price and barrister Andrew Caldecott QC, for a group of intervening media organisations, to liberalise and expand the law on the defence still further.

Lord Phillips, the head of the Supreme Court, said: "There is a case for reform. Would it not be more simple and satisfactory if in place of the objective test, the onus was on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it?

"There may be a case for widening the scope of the defence of fair comment by removing the requirement that it must be on a matter of public interest."

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