Must the defamation defence of ‘fair comment’ be ‘fair’?

The law offers various defences to an accusation that one individual has defamed another. The recent decision in the case of Branson v Bower gives an interesting perspective on one such defence, that of "fair comment on a matter of public interest". This defence can work where the allegedly libellous comments are statements of opinion rather than statements of fact.

The case concerned Sir Richard Branson’s allegation that he had been libelled by an article carried in the Evening Standard in December 1999. The article had suggested, among other things, that Sir Richard’s bid to run the National Lottery was motivated by financial self-interest and the chance of free publicity for the Virgin brand. Sir Richard sued in defamation and the article’s author, Tom Bower, claimed the defence of "fair comment".

The critical issue before the court was the meaning of "fair comment". Sir Richard’s lawyers argued that, in order for opinion to be "fair comment", those views must satisfy a test of "fairness". In other words, could a "fair-minded man" honestly hold those views? If not, they claimed, the defence should fail. Lawyers for Bowyer instead contended that the test was simply whether the stated opinions were honestly held.

The court decided that a test of "fairness" had no role. The "fair comment" defence exists to protect expressions of genuine opinion on matters of public interest. The defence is open to a commentator, however prejudiced he might be and however obstinate his views, so long as those views are honestly held. Any demand that the views be "reasonable" or "fair" would create great uncertainty as to what could or could not be said. More importantly, it would significantly and unacceptably inhibit the freedom to comment on public events. This is good news for commentators, but certain factors should be remembered. Firstly, the relevant underlying facts must be truly stated. The defence will not succeed if the commentator’s opinions are based on an inaccurate or distorted picture. Secondly, the opinions must be capable of being honestly held. This is an objective test, but does not mean that the views must be fair. It simply means that "fair comment" will not protect entirely unjustifiable or bizarre opinions, which anyone knowing the facts could not honestly hold.

In the case itself, the court found that the opinions were clearly capable of being honestly held. Sir Richard could still succeed, but he would need to establish that Bowyer did not in fact honestly hold the views which he had expressed.