Keays decision shows breadth of fair comment defence

A question frequently faced by journalists and media lawyers is whether a statement is an assertion of fact or a comment. The question is important: in defamation proceedings, the defence of fair comment may be available where a comment or opinion is in issue, with the defendant not then being required to prove its truth. A ruling this month in the case of Sara Keays v Guardian Newspapers Limited demonstrates just how broad the fair comment defence is, applying to statements which until recently many would have categorised as statements of fact.

Whether a statement is a comment or not will often be obvious. However, an area of difficulty for many years was whether a statement about someone’s motive or state of mind could be regarded as a comment. In the 1885 case of Edgington v Fitzmaurice, Lord Justice Bowen memorably stated that “the state of a man’s mind is as much a fact as the state of his digestion”. Without clear legal authority to the contrary, journalists were often advised to limit criticisms to a person’s acts and not to make assertions about a person’s motives. This risked acting as a drag on freedom of expression.

In November 2000, the Court of Appeal in Branson v Bower grasped this nettle. In an important ruling, the court held that assertions published in the Evening Standard about Sir Richard Branson’s motives for bidding for the National Lottery could only be regarded as comment. An important factor in that case was that it was clear to readers that the author could not have had direct knowledge of Branson’s state of mind. He must, therefore, have been expressing his own views and inferences.

In the Sara Keays case, The Observer had published in its comment section a robust article criticising the former mistress of Lord Parkinson for exposing their daughter to media attention. Relying on Branson v Bower, The Observer successfully argued that the words complained of were comment. The author had drawn inferences about Keays’ state of mind which she was not in a position to verify, which would have been clear to readers. The court agreed and held, as in the Branson case, that the words could only be regarded as comment.

Not every assertion of dishonourable motive will be regarded as a comment. For example, where no supporting reasons are stated or referred to, an inference about motive is likely to be treated as an allegation of fact. Nonetheless, the ruling in Keays illustrates that fair comment can provide an important shield when making assertions about someone’s state of mind.

David Attfield is a solicitor in the media group of Lovells, who acted for Guardian Newspapers Limited

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