In my post on defamatory reviews a few days ago, I wrote that critics will usually be able to rely on the defence of ‘fair comment’. Now comes news (hat tip: Daithí) that the Court of Appeal for England and Wales thinks so too!
To be able to rely on this defence, the relevant statement must indeed have been a comment (and recognisably so, as opposed to an allegation of fact, for example); it must have been based on facts that are true (or protected by privilege); it must have been made on a matter of public interest (and the courts are now taking quite a broad view of what constitutes the public interest for this purpose); and it must have been one which could have been made by an honest person (that is to say: it must have been ‘fair’). In a relatively recent important case, Lord Nicholls said of this last requirement:
Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. It must be germane to the subject matter criticised. Dislike of an artistâ€™s style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism.
[See Albert Cheng v Tse Wai Chun Paul  3 HKLRD 418, 425; discussed: Cottrell (2003) 27 Melbourne University Law Review 33,  MULR 2]
Even so, in Associated Newspapers Ltd v Keith Burstein  EWCA Civ 600 (22 June 2007), Keith Burstein, the composer, and (with Dic Edwards) co-librettist, of the opera Manifest Destiny, sued London’s Evening Standard (about | stories | wikipedia) for libel arising out of a review by Veronica Lee of the 2005 Edinburgh Festival production of the opera. Manifest Destiny is an opera about love (that staple of opera) and suicide bombers (not a staple, but there are some examples) (see the BBC’s review of the production), but Lee’s review concluded
… I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult.
As with last week’s decision of the High Court of Australia (Fairfax v Gacic  HCA 28), there was here too a parsing of the language of the review to determine whether any of it could sustain a possible defamatory meaning; but, unlike Gacic, having found that one potentially defamatory meaning might be squeezed out of Lee’s last sentence (just quoted), the Court of Appeal was able to go on and determine whether there could be a defence. Moreover, reversing Eady J at first instance, Keene LJ in the Court of Appeal (Dyson and Waller LJJ concurring) held the defence of fair comment must inevitably succeed, and made an order dismissing the claim.
 … Insofar as the final sentence in the review might be said to be capable of being read as a statement of fact, it was patently intended as a summary of and a commentary on the factual description of the opera set out in the preceding part of the review. No reasonable person could read it as a statement about the claimant in respect of any matter not contained in that review. There is no suggestion that the reviewer was otherwise acquainted with the claimant. That is important for the reasons set out in Carr v Hood [(1808) 1 Camp 355, 170 ER 983] …, which was cited with approval by Somervell LJ in the Court of Appeal in Kemsley v Foot  2 KB 34 at 41. The final sentence in the review was patently drawing an inference from the facts which had been set out earlier in the review, and on the principles approved by the House of Lords in Kemsley v Foot  AC 345 it was unmistakeably comment. The point was vividly put by Lord Ackner in Telnikoff v Matusevitch  2 AC 343 at 358 B, adopting a passage from Winfield and Jolowicz on Tort, 11th edition:
“To say that ‘A is a disgrace to human nature’ is an allegation of fact, but if the words were ‘A murdered his father and is therefore a disgrace to human nature’ the latter words are plainly a comment on the former.”
Such is the situation in the present case.
 Moreover, the words complained of were contained in a review by a critic, as any reader would appreciate, and which the reader would expect to contain a subjective commentary by the critic. The words also embody, quite obviously, powerful elements of value judgments â€“ the word “heroic” in itself does that. In addition, the final sentence follows other sentences full of evaluative words, such as “trite”, “horribly leaden” and “uninspiring”. That too must be understood to influence how a reasonable reader would see the final sentence. Such value judgments are not something which a writer should be required to prove are objectively valid, as the Strasbourg Court has pointed out when dealing with Article 10 rights in Nilsen and Johnson v Norway (2000) 30 EHRR 878,  ECHR 134 (25 November 1999) at paragraph 50.
This is plainly good common sense, and very welcome for it; and, although it might be going too far to hug an appeal judge today for it, it has nevertheless properly been warmly received: eg Greenslade, elsewhere in the Guardian, and in the press more generally (here and here). If this review hadn’t clearly been fair comment, it is hard to see what substance there might be to the defence. As it is, the outcome in Burstein should come as some reassurance to those worried by the hype around Gacic. And, in the meantime, my alternative career as a food’n’movies critics might yet beckon!
Update (24 June 2007): As Keith Burstein makes clear in the first comment below, there is to be an appeal from the above decision to the House of the Lords. He describes the reasoning of the Court of Appeal as “circular”; he argues that having his case heard by a jury “is the democratic right of anyone placed in [his] position of being portrayed as an advocate of violence when the reverse is true”; and he therefore characterises that Court’s denying his case access to a jury as “shocking”.
Update (28 June 2007): Veronica Lee, the critic whose review is at issue in Associated Newspapers v Burstein, and who therefore has more purchase than I do on the line that ‘the Court of Appeal agrees with her’, has a piece about the case in this week’s Observer:
A VICTORY FOR THE CRITICS
How the appeal court endorsed my review
Writers, I’ve always believed, should never be the story; rather, they should report the facts, get the quotes right and file on time. But last Friday, I was named in a historic legal judgment that has huge implications for press freedom. And I’m really rather chuffed. …
9 Reply to “The manifest destiny of critics’ fair comment”
Your alternative career may yet beckon.I have and will exercize a legal right to appeal to The House of Lords , as the triumphalist reports of the Appeal courts decision failed to mention.
The reasoning you quote from the Appeal ct is circular.Judge Eady , an eminent libel judge stated correctly in a previous hearing that a jury may find an allegation of fact in what was published about Manifest Destiny my and Dic Edwards opera.He concluded that this case should proceed to jury trial.THe final sentence of the review “the idea that there is anything heroic about suicide bombers is frankly a grievous insult , “is an allegation of fact.It portrays the work and my intentions as their reverse.The opera shows would be bombers renouncing violence and becoming advocates of peace.Its intention is to abhor violence and show the power of love over violence.To portray me as a purveyor of suicide boming as a noble act is deeply perverse and utterly untrue of the moral vision and purpose expressed in this work.It is to turn white to black.
THe Appal ct’sdenial of access to a jury to decide this case is shocking.The overwhelming power of the media , often harnessed to state power , must be challenged when it is used to denigrate artists with the courage to say what the political establishmnet does not want said.
Judge Eady was right to say this case should be heard by a jury.That is the democratic right of anyone placed in my position of being portrayed as an advocate of violence when the reverse is true.THe Apeal ct have blocked this right.Why?If this case is so clear why not let a jury decide?
Therefore ths case is not over.I wont rest until I have enabled the principles of censorship freedom of expression of artists – and of us all- and of covil liberties raised by this case to be considered in the arena of democrtic justice – the jury.
Thanks Keith, for taking the opportunity to comment. As you will see, I have tried to capture the flavour of your point in the main body of the post. Please do keep us abreast of developments with your appeal.