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Fair Comment! Or is it…?
By Christopher J Sherliker

“Fair comment” has been described as the very cornerstone of the right to free speech, allowing honest, good-faith statements to be made if they express a view and are founded on true facts. But important as it is, the age-old defence to libel actions has failed to keep up with the times.

Bringing an end to a series of appeals, the Supreme Court rejected a claim that “fair comment” did not reflect the needs of the modern day.

In a case decided this month, one events company stated on its website that it “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.” The members of the band The Gillettes sued for libel.

In the leading judgment, Lord Walker said: "The defence of fair comment originated in a narrow form in a society very different from today's. Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they have learned from television or the Internet."

The Court went on to find that there was no need for a full factual basis for a comment to be provided in order for it to be defensible in law. It was suggested that “fair comment” should be renamed “honest comment” to reflect this change, and in a bid to promote further reform.

This judgment updating the law comes only a few weeks after the “Twitter Joke Trial” was finally decided, when a man was convicted for posting a joke on Twitter that was taken to be a bomb threat against Robin Hood Airport. Also this year, the Digital Economy Act 2010 was passed, making provisions for the reduction of Internet copyright infringement.

Unlike libel law reform, these two developments have come under much attack. As much as the law may be beginning to accept that the Internet requires special measures, it still has a long way to go to catch up with the twenty-first century.

Added: 20th December 2010

Christopher J Sherliker is a partner for Silverman Sherliker LLP who provide legal solutions across a spectrum of requirements.  Find out more about Silverman Sherliker LLP.


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