Can comments without facts be fair?

The decision of Mr Justice Gray, in Norman Oliver v Chief Constable of Northumbria (14 October, 2003), provides a timely reminder about the reliance to be placed on the defence of “fair comment on a matter of public interest”.

The defence will only be relevant if the publication includes sufficient facts to enable the reader to draw his own conclusion irrespective of the author’s comment. Inspector Oliver of the Northumbria Police was involved in an investigation into allegations of attempted murder.

His experiences led him to write the Oliver Report in which he called for an inquiry into what had taken place during that investigation. His allegations were in turn investigated by a Northumbria Police team which produced the Crimmens/Taylor Report concluding that the allegations made by Oliver were groundless.

A reporter from Tyne Tees Television obtained a copy of the Oliver Report. He asked the Northumbria Police press office what, if any, resulting action had been taken and asked for comments to use in a broadcast. The response included the words: “The allegations made by [Inspector Oliver] were rigorously investigated by an Assistant Chief Constable. They were judged to be unfounded and were discredited.”

Oliver claimed that the statement made by the press office was defamatory. The Chief Constable of Northumbria relied on a number of defences including that of fair comment on a matter of public interest.

He argued that the police investigation into the alleged murders was of public interest. The discrediting of the Oliver Report was comment and the facts and matters upon which the comment was based could be found in the Crimmens/ Taylor Report.

In the leading case of Albert Cheng and Lam Yuk Wah v Tse Wai Chun Paul [2001] EMLR 777, Lord Nicholls described the purpose of the defence: “…to facilitate freedom of expression by commenting on matters of public interest”.

That freedom is, however, subject to the safeguard that the comment must explicitly or implicitly indicate, at least in general terms, the facts on which the comment is based. This can give rise to some difficult decisions for the publisher.

The solution is to ensure that the reader’s attention is directed to sufficient facts to enable him to be in a position to judge to what extent the comment was well founded.; a summary will suffice. If the facts are not set out but are alluded to they must be sufficiently well known to the reader to enable him to draw his own conclusions.

Mr Justice Gray ruled that the press office should have provided the reporter with significantly more of the information in the Crimmens/ Taylor Report upon which was based the comment that Oliver’s allegations had been “discredited”.

However, fortunately for Northumbria Police, he also decided that the defence of qualified privilege was available.

Jonathan Crusher is a partner in the media team at Farrer & Co

by Jonathan Crusher

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