In its review of English libel law announced last month, the government should take a sharp look at the unhelpful intricacies of fair comment.
The fair comment defence is supposed to be a touchstone of free speech in a democracy, but case law has complicated it with burdensome technicalities.
Indeed, a recent appeal petition lodged with the Supreme Court has gone as far as suggesting that the defence unnecessarily fetters authors? style and is merely conducive to legalistic and turgid writing.
A separate case, decided by Mr Justice Gray on 12 November this year, illustrates some of the obstacles that currently beset the defence.
The case concerned a review by well-known journalist Lynn Barber of a book called Seven Days in the Art World, written by Dr Sarah Thornton.
The review, published in the Daily Telegraph, was clearly intended to be a comment piece. However, Dr Thornton?s lawyers successfully argued that the following defamatory words could not be defended on the basis of fair comment: "She [Dr Thornton] also claims that she practices 'reflexive ethnography,' which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this 'copy approval' and disapprove."
The judge said: "It appears to me that, in order for the defence of fair comment to stand, it was incumbent on Ms Barber to indicate in her review for the benefit of readers, at least in general terms, how Dr Thornton claimed to deal with interview material incorporated in the book and why Ms Barber was sceptical about her claim.
"Having done so, Ms Barber would be free to comment on the validity of Dr Thornton?s practice. It appears to me that the review, as it stands, significantly misdescribes what Dr Thornton says in her book about the way she deals with interviewees."
He held that the review contained a ?material misstatement? by Ms Barber, and accordingly the newspaper's fair comment defence had to be struck out as being bound to fail.
Mr Justice Gray said he was concerned that those who read the defamatory review, then read the book to see for themselves, would not be able to tell from reading the book whether Ms Barber had materially misstated the facts when she wrote that Dr Thornton?s interviewees were given the frowned-upon right of 'copy approval.'
This type of pitfall is an example of the semantic intricacy that bedevils the defence. The journalist had set out to give her opinion of a book, only to find that a judge felt she had failed to clear all of the defence?s hurdles.
The strands of English law's fair comment defence have been distilled by various judges over the past decade, but its scope remains in need of urgent scrutiny by the higher courts, or Parliament.
The defence's "outer limits" were summarised by the Court of Appeal of Hong Kong in the leading case of Cheng, in 2001. The comment must be made without malice on a matter of public interest. It must be recognisable as comment, as distinct from an imputation of fact. The comment must be based on facts which are true or protected by privilege. It must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. Finally, the comment must be one which could have been made by an honest person, however prejudiced, exaggerated or obstinate his views.
In 2007, the media welcomed a ruling by Mr Justice Eady in Lowe v Associated Newspapers which gave publishers some leeway in the light of European case law on freedom of expression under Article Ten of the European Convention on Human Rights.
Eady J. decided that a defendant relying on a fair comment defence may rely on facts that are not actually stated in the defamatory words themselves. But he said that any such extraneous facts must at least have existed at the time of publication, and must have been known at least in general terms at the time to the commentator.
The effect of this High Court decision is that facts on which comments are based do not necessarily have to be set out for the reader before a defamatory opinion can be defended as fair comment. Nevertheless, the other onerous requirements of fair comment still create many hoops through which writers and publishers must jump before they have any chance of successfully running this defence.
At a time when there is great public interest in people having the digital means and the freedom to communicate ideas and information across multimedia platforms, the government's review of libel law could do worse than to start with an urgent review of the arcane fair comment defence.