The right of journalists to pen damning reviews has been upheld by a House of Lords ruling.
It has rejected a composer’s petition for permission to appeal against a Court of Appeal judgment which said a newspaper’s criticism of his work was protected by the defence of fair comment
The House of Lords also ordered that Keith Burstein should pay Associated Newspapers’ costs.
Burstein sued the Evening Standard over Veronica Lee’s August 2005 review of the opera Manifest Destiny, which he composed and co-wrote, and which was performed at the Edinburgh Festival.
Lee described the theme of the opera – which involved a would-be suicide bomber being handed over to the Americans by her cell leader in order to save her life – as “depressingly anti-American”, adding that “the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult”.
Burstein had claimed that the review was defamatory and meant that he sympathised with terrorist causes and actively promoted such belief in his work, and also that he applauded the action of suicide bombers and raised them to a level of heroism.
Mr Justice Eady held that he could not hold that the words complained of were incapable of bearing the meaning claimed by Burstein, and that a defence of fair comment might not succeed before a jury.
But the Court of Appeal – Lord Justice Waller, Lord Justice Keene and Lord Justice Dyson – overturned that decision and awarded summary judgment to Associated Newspapers.
Lord Justice Keene said it was clear that the words complained of could not bear the meaning claimed by Burstein. They were plainly comment, and were not capable of being held to fall outside the scope of the fair comment defence
It is understood that Mr Burstein was operating on a no-win, no-fee Conditional Fee Agreement, and did not have After the Event insurance to cover Associated Newspapers’ costs.
It is also understood that at the time he petitioned the House of Lords he had already told Associated Newspapers that he could not meet the costs order already made against him following the Court of Appeal’s rejection of his case.
But it is believed that Associated Newspapers will be pursuing the costs issue.