Supreme Court modifies libel law described by minister as 'not fit for purpose'

The minister said that the Government's previously-announced libel reform bill will be published in March.

All three major UK political parties committed to libel reform in their manifestos ahead of this year's general election, admitting that the current law did not give enough protection to writers and publishers and favoured those suing for libel too heavily.

Lord McNally told a meeting of libel reform activists that, “in its current state, English libel law is not fit for purpose”.

"We agree [with campaigners that] the law needs reforming and have been working on a draft Defamation Bill, which we hope to publish and put out for consultation in March," he said.

The Supreme Court has already modified one of the defences to libel suits, that of fair comment. It will now be called 'honest comment' and will carry less of a burden to identify on exactly what facts a potentially libellous comment is based.

The members of a band, The Gillettes, signed up with the 1311 Events booking agency, which was run by Jason Spiller.

The band and the agency were involved in a dispute about the band's alleged breach of the agreement's terms and band member Craig Joseph's claim that the term was not binding.

Spiller made a posting on his agency's website which said: "1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract".

It went on to describe the nature of the disagreement in more detail.

The Supreme Court was hearing an appeal against a ruling from a lower court which said that Spiller could not use the 'fair comment' defence because a previous ruling by Lord Nicholls had said that to qualify for that protection a comment had to outline the facts on which it was based.

"The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded," he said, in a list of factors determining whether or not a fair comment defence could apply.

Lawyers for Spiller and some newspapers and broadcasters urged the Supreme Court to take the opportunity to revise entirely the law of 'fair comment'. It declined to do that, saying that the law should be reviewed by the Law Commission, but did say that Lord Nicholls's demand that the facts be contained within a comment be dropped.

"The facts on which the defendants wish to rely in support of their plea of fair comment include a fact to which they made no reference in the publication complained of," said the Supreme Court ruling, written by Lord Phillips. "The claimants say that they cannot rely on this, for this would run foul of Lord Nicholls' fourth proposition."

"The important issue raised by this appeal is thus the extent to which, if at all, the defence of fair comment requires that the comment should identify the matter or matters to which it relates," it said. "Can the defendants rely in support of their plea of fair comment on matters to which they made no reference in their comment?"

Lord Phillips reviewed previous cases and found that there was no historic basis for the suggestion that the specific facts underpinning a comment must be contained within the comment itself.

"There is no case in which a defence of fair comment has failed on the ground that the comment did not identify the subject matter on which it was based with sufficient particularity to enable the reader to form his own view as to its validity," he said. "For these reasons, where adverse comment is made generally or generically on matters that are in the public domain I do not consider that it is a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves."

Lord Phillips said that this did not mean, though, that a comment could be made without any reference to a factual basis for the adverse comments.

"The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did," he ruled. "A fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism. "

Lord Phillips said that he would rename this defence the defence of 'honest comment'.

Another judge hearing the case backed that view and said that the law must move to keep up with a changed publishing climate.

"Lord Phillips shows how the defence of fair comment (now to be called honest comment) originated in a narrow form in a society very different from today's," said Lord Walker. "It was a society in which writers, artists and musicians were supposed to place their works, like wares displayed at market, before a relatively small educated and socially elevated class, and it was in the context of published criticism of their works that the defence developed."

"The creation of a common base of information shared by those who watch television and use the internet has had an effect which can hardly be overstated. Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they have learned from television or the internet," he said.

"Many of the events and the comments on them are no doubt trivial and ephemeral, but from time to time (as the present appeal shows) libel law has to engage with them," said Lord Walker. "The test for identifying the factual basis of honest comment must be flexible enough to allow for this type of case, in which a passing reference to the previous night's celebrity show would be regarded by most of the public, and may sometimes have to be regarded by the law, as a sufficient factual basis."