This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated.
The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies.
The appellants provide entertainment booking services.
The Gillettes appointed the booking agency to promote their acts, entering into a contract which included a re-engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants.
The booking agency arranged a booking for the Gillettes at Bibis restaurant in Leeds. The Gillettes agreed to perform again at Bibis three weeks later without reference to the agency.
The agency emailed the band to complain of the breach of the re-engagement clause. A band member replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other Gillettes were not bound by the re-engagement clause as they had not signed the contract.
The booking agency thereafter posted a notice on their website announcing that they were no longer representing the Gillettes as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of “contracts hold no water in legal terms”. For this reason it may follow that the artists obligations for your booking may also not be met….’
The Gillettes issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform.
The booking agency relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment.
The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the agency.
A ‘fair comment’ must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded
However this defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest.
Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment.
The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case.
The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re-naming of the defence from fair comment to honest comment.
Applying the law to the facts of this case, the posting by the booking agency referred to the breach of contract relating to the Bibis restaurant, and to the Gillettes’ email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the Gillettes’ contractual obligations to the agency. The email as quoted arguably evidenced a contemptuous attitude to contracts in general.
It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference.
The defence should therefore be reinstated.