Associated Newspapers and Times Newspapers have asked the Supreme Court for permission to intervene in a defamation case to clarify issues connected with the fair comment defence.
The Supreme Court agreed in February that it would hear an appeal after the publishers filed papers seeking to intervene in the case of Spiller and Another v Joseph and Others.
It is understood that other media organisations are considering joining the appeal, which is scheduled for hearings on 26 and 27 July.
Jason Spiller and booking agency 1311 Events Ltd, of which he is one of two directors, are to appeal against the Court of Appeal’s rejection of a previous appeal by them against a ruling by Justice Eady’s to strike out their fair comment defence.
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The substantive part of the appeal focuses on the extent to which a defendant using the fair comment defence – now known by the Court of Appeal as honest opinion – has to detail facts supporting information to the words which caused the original complaint.
Spiller and 1311 argue that a point raised by the case is whether paragraph 19 of the Privy Council’s judgment in an earlier case – Tse Wai Chun Paul v Albert Cheng – is an accurate statement of English law.
Paragraph 19 of that judgment states: “The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.
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‘The reader or hearer should be in a position to judge for himself how far the comment was well founded.”
The appellants argue that indicating the facts on which a comment was made creates an additional hurdle for the use of a fair comment defence, and what is really required is the facts to be alleged or referred to in the words complained of.
The media submission argues that despite the importance of fair comment to freedom of expression, and even though it is one of the principal mechanisms through which the law seeks to achieve compliance with the values if the European Convention on Human Rights, “these crucial issues remain uncertain”.
The submission states: “The editors of the recently published third edition of Duncan and Neill on Defamation suggested that it is doubtful that, notwithstanding the fundamental importance and breadth of this defence, ‘English law has succeeded in avoiding the legal refinements against which Lord Denning MR cautioned’.”
The submission goes on: “The appellants in this appeal are not members of the media, but are a company and its directors engaged in the business of providing entertainment booking services.
“Nor is the publication a media publication.
“However, the issues to be decided will have profound consequences for media publications, which commonly feature opinions expressed by third parties rather than (as is this case) opinions by the defendants themselves.”
The media, it says, seek to raise three separate issues.
The first is that raised by the appellants – whether the statement in Tse Wai Chun Paul v Albert Cheng is a correct statement of the law.
The second is the issue of whether the commentator has to know the facts at the time of publication.
The final issue, it says, is the question of the correct interpretation of section 6 of the 1952 Defamation Act
“The applicant would submit that all facts legitimately relied on in support of the comment complained of come within the section,” the submission added.
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