Fair comment strengthened and becomes “honest comment”
The fair comment defence for libel has been strengthened and renamed “honest comment”.
The Supreme Court has decided in a small but important libel action that you no longer have to spell out the facts on which the comment is based.
Comment on the Internet triggers change
The Court made its decision because of the millions of comments being made on the Internet. Many, it said, are just comments, not referring to the facts explicitly. So the fair comment defence, formed in the 19th century, has to change.
The Courts have been edging this way for a time. A central test of winning a fair comment defence has been was it an honest comment:
- Could a reasonable person make this comment on the facts known?
One solicitor is quoted in the Guardian as saying: “The defence is clearly going to feature more significantly now.”
The defendants now have to prove that they genuinely believed in their comment on the facts that they knew.
Comment got to be without malice
Honest comment can still be defeated by malice: disregard for the truth.
But, along with the Reynolds Defence, this is a step forward.