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PROTECTING INFERENCES OF FACT IN DEFAMATION LAW: FAIR COMMENT AND HONEST OPINION

Published online by Cambridge University Press:  01 June 2015

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Abstract

Distinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.

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Copyright © Cambridge Law Journal and Contributors 2015 

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References

1 E.g. Lyon v Daily Telegraph [1943] K.B. 746, 753, per Scott L.J.; Kemsley v Foot [1951] 2 K.B. 34, 46, per Birkett L.J.; similar Slim v Daily Telegraph [1968] 2 Q.B. 157, 170, per Lord Denning M.R.; British Chiropractic Association v Singh [2011] 1 W.L.R. 133, at [36].

2 Brent Walker Group v Time Out [1991] 2 Q.B. 33, 44, per Bingham L.J.

3 Report of the Committee on the Law of Defamation (Cmd. 7536, October 1948), at [83] (generally known as “Porter Committee”).

4 E.g. Australian Law Reform Commission, Unfair Publication: Defamation and Privacy (Report no. 11, 1979), at [127].

5 Joseph v Spiller [2011] 1 A.C. 852, at [1], per Philips L.J.

6 Report of the Committee on Defamation (Cmnd. 5909, March 1975), at [151] (generally known as “Faulks Committee”).

7 See e.g. English PEN & Index on Censorship, Free Speech Is Not for Sale (London 2009), 9; Explanatory Notes, Defamation Bill 2010 (“Lester Bill”), at [62]; HL Deb. vol. 741 col. GC531 (19 December 2012) (Lord Lucas); HC Deb., Public Bill Committee, cols. 52–53 (19 June 2012) (Helen Goodman).

8 Robertson, G. and Nicol, A., Media Law, 5th ed. (London 2008), 150Google Scholar. For a summary of criticisms of the common law defence, see Price, J. and McMahon, F. (eds.), Blackstone's Guide to the Defamation Act 2013 (Oxford 2013), 4649Google Scholar.

9 Gillooly, M., The Law of Defamation in Australia and New Zealand (Sydney 1998), 125Google Scholar.

10 English PEN & Index on Censorship, Free Speech, p. 9. Others, however, have claimed that the scope of comment has been expanded by courts in recent years through adopting the terminology of “value judgments” in defining comment: see D. Mangan, “An Argument for the Common Law Defence of Honest Comment” (2011) 16 Comms.L. 140.

11 See e.g. Jaffey, A.J.E., “The Right to Comment” in Bridge, J.W. (ed.), Fundamental Rights (London 1973), 60Google Scholar: through fair comment, defamation law should protect not “bare assertions”, but “reasoned” ones.

12 Explanatory Notes, Defamation Act 2013 (UK), at [19].

13 See e.g. Collins, M., Collins on Defamation (Oxford 2014)Google Scholar, at [9.04]–[9.07], [9.25]–[9.28].

14 Joseph [2011] 1 AC 852, at [3]–[7], [105], endorsing with modification the approach of Lord Nicholls in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 31, at [16]–[21].

15 London Artists v Littler (1969) 2 Q.B. 375, 391.

16 Joseph [2011] 1 A.C. 852, at [103].

17 Ibid., at para. [105].

Ibid

18 The effect of these changes has received differing commentary; see e.g. Price and McMahon, Blackstone's Guide, paras. [4.51]–[4.53] (wider range of privilege covered than under the traditional defence); Collins, Collins on Defamation, para. [9.07] (in this aspect, the statutory defence “at least in form” narrower than fair comment); Parkes, R. and Mullis, A. (eds.), Gatley on Libel and Slander, 12th ed. (London 2013)Google Scholar, para. [12.4] (defence expanded in terms of encompassing comment on material protected by public interest defence in s. 4 of the Defamation Act 2013).

19 Defamation Act 2013 (UK), s. 3(4)(a). Cf. Joseph [2011] 1 A.C. 852, at [71]. See also, Cohen v Daily Telegraph [1968] 1 W.L.R. 916.

20 See e.g. Collins, Collins on Defamation, paras. [9.25]–[9.33]; A. Mullis and A. Scott, “Tilting at Windmills: The Defamation Act 2013” (2014) 77 M.L.R. 87.

21 Mullis and Scott, “Tilting at Windmills”, p. 94.

22 Explanatory Notes, Defamation Act 2013 (UK), at [21].

23 Ibid.

Ibid

24 Collins, Collins on Defamation, para. [9.09].

25 Channel Seven Adelaide v Manock (2007) 232 C.L.R. 245, at [35].

26 See e.g. E. Descheemaeker, “Three Errors in the Defamation Act 2013” (2015) 6 J.E.T.L. (forthcoming).

27 Explanatory Notes, Defamation Act 2013 (UK), at [21].

28 Parkes and Mullis (eds.) Gatley, 12th ed., para. [12.10].

29 Price and McMahon, Blackstone's Guide, para. [4.33].

30 See e.g. Gardiner v John Fairfax & Sons Pty Ltd. (1942) 42 S.R. (NSW) 171.

31 Jaffey, “The Right to Comment”, p. 61; P.J. Sutherland, “Fair Comment by the House of Lords?” (1992) 55 M.L.R. 278.

32 See e.g. Channel Seven Adelaide (2007) 232 C.L.R. 245, at [38], where an allegation that new facts had emerged in a murder investigation was factual because “either they had or they had not”.

33 See notes 84–107 below and text.

34 Jaffey, “The Right to Comment”, p. 60.

35 Clarke v Norton [1910] V.L.R. 494, 499.

36 Channel Seven Adelaide (2007) 232 C.L.R. 245, at [35].

37 O'Brien v Marquis of Salisbury (1889) 54 J.P. 215, 216, emphasis added.

38 Cole v The Operative Plasterers Federation of Australia (NSW) Branch (1927) 28 S.R. (NSW) 62, 67.

39 See e.g. A.L. Young, “Fact, Opinion, and the Human Rights Act 1998: Does English Law Need to Modify its Definition of ‘Statements of Opinion’ to Ensure Compliance with Article 10 of the European Convention on Human Rights?” (2000) 20 Oxford J.L.S. 89; Kemsley v Foot [1952] A.C. 345, 356; Channel Seven Adelaide (2007) 232 C.L.R. 245, at [35]–[36].

40 Channel Seven Adelaide (2007) 232 C.L.R. 245, at [4]; Pryke v Advertiser Newspapers Ltd. (1984) 37 S.A.S.R. 175, 192 (“A statement can be regarded as comment as distinct from allegations of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts”); Crawford v Albu 1917 A.D. 102, 105; Goldsbrough v John Fairfax & Sons (1934) 34 S.R. (NSW) 524, 532.

41 See e.g. O'Shaughnessy v Mirror Newspaper Co. (1970) 125 C.L.R. 166; Kemsley [1952] A.C. 345, 385.

42 O'Brien (1889) 54 J.P. 215, 216; Channel Seven Adelaide (2007) 232 C.L.R. 245, at [35].

43 Kemsley [1952] A.C. 345, 356. See e.g. Joseph [2011] 1 A.C. 852, at [5], where Lord Phillips said: “Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact.”

44 Kemsley [1952] AC 345, 356. See also Goldsbrough (1934) 34 S.R. (NSW) 524, 532, per Jordan C.J.: “A statement of opinion, if made to a person who has not had brought to his mind the facts on which it is based, is a statement of fact and not comment.”

45 Mitchell, P., The Making of the Modern Law of Defamation (Oxford 2005), 169–91Google Scholar.

46 Dibdin v Swan and Bostock (1793) 1 Esp. 28; (1793) 170 E.R. 269.

47 Cooper v Lawson (1833) 8 Ad. & E. 746; 112 E.R. 1020.

48 Cooper (1833) 8 Ad. & E. 746, 753–54; 112 E.R. 1020.

49 Mitchell, The Making of the Modern Law of Defamation, p. 176.

50 See e.g. Morrison v Belcher (1863) 3 F. & F. 614, 619; 176 E.R. 280; Lefroy v Burnside (1879) 4 L.R. (Ir.) 556.

51 Mitchell, The Making of the Modern Law of Defamation, p. 179.

52 Risk Allah Bey v Whitehurst (1868) 18 L.T.R. 615.

53 Davis v Duncan (1874) L.R. 9 C.P. 396.

54 Lefroy (1879) 4 L.R. (Ir.) 556. See also Campbell v Spottiswoode (1863) 3 B. & S. 769; 176 E.R. 188.

55 Mitchell, The Making of the Modern Law of Defamation, p. 179.

56 Hunt v Star Newspaper Co. [1908] 2 K.B. 309.

57 Dakhyl v Labouchere [1908] 2 K.B. 325.

58 Ibid., at p. 326.

Ibid

59 See Slim [1968] 2 Q.B. 157, 171, per Lord Denning M.R. (allegations of dishonesty, insincerity, and hypocrisy were protected as fair comment but with little explanation); Silken v Beaverbrook Newspapers [1958] 1 W.L.R. 743 (allegations of insincerity and hypocrisy where the decision's focus was on whether the comments were fair).

60 Mitchell, The Making of the Modern Law of Defamation, pp. 183–91.

61 Campbell (1863) 3 B. & S. 769; 176 E.R. 188.

62 Mitchell, The Making of the Modern Law of Defamation, p. 186.

63 Fisher, and Strahan, , The Law of the Press, 2nd ed. (London 1898), 181Google Scholar, cited in Mitchell, The Making of the Modern Law of Defamation, pp. 185–86.

64 Mitchell, The Making of the Modern Law of Defamation, p. 186.

65 Ibid., at pp. 189–90.

Ibid

66 See e.g. Sutherland v Stopes [1925] A.C. 47, 65, where Viscount Finlay said on justification: “the question which ought to have been left to the jury was whether the libel, comment as well as averments of fact, was true”; see also, Lord Shaw, pp. 75, 78; cf., Lord Wrenbury, p. 87.

67 Mitchell, The Making of the Modern Law of Defamation, p. 189.

68 Parmiter v Coupland (1840) 6 M. & W. 105, 108; 151 E.R. 340, 341–42.

69 Ibid., at pp. 186–90.

Ibid

70 Lyon [1943] 1 K.B. 746 (CA), 753, per Scott L.J. See also Slim [1968] 2 Q.B. 157 (CA), 170, per Denning M.R.; Silken [1958] 1 W.L.R. 743, 745–46, per Diplock J.

71 See e.g. Channel Seven Adelaide (2007) 232 C.L.R. 245, at [35].

72 See e.g. Crawford 1917 A.D. 102, 114; Johnson v Beckett (1991) Z.A.S.C.A. 175, at [12], where accusations of hypocrisy and bias, as factual inferences, were described as a “classic case of comment dressed up as fact: it remains an expression of opinion”.

73 Du Claire v Palmer [2012] NZHC 934, at [49]–[51].

74 Channel Seven Adelaide (2007) 232 C.L.R. 245, at [35].

75 Ibid., at paras. [38]–[39], per Gummow, Hayne, and Heydon J.J.

Ibid

76 Ibid., at para. [127].

Ibid

77 Pervan v North Queensland Newspaper Co (1993) 178 C.L.R. 309 (allegation expressed as a question).

78 E.g. Herald & Weekly Times v Buckley (2009) 21 V.R. 661, at [30], capable of being “an inference or evaluation or judgment which the publisher had derived or inferred from the stated facts” and therefore comment. See also Cleary v Hore-Lacy (No. 2) (2009) 21 V.R. 692, where the Victorian Court of Appeal reaffirmed that statements of fact may be comment if presented as deductions from other facts, although the publication in question did not do that.

79 John Fairfax Publications v O'Shane (2005) Aust. Torts Reports ¶81–789, at [28], discussing allegation of murder as hypothetical example. See also Collins, Collins on Defamation, para. [9.28], which provides a hypothetical allegation that “C was the killer” which may be protected as comment although clearly an allegation of verifiable fact.

80 John Fairfax Publications (2005) Aust. Torts Reports ¶81–789, at [43]–[49].

81 Herald & Weekly Times (2009) 21 V.R. 661, at [30].

82 E.g. Chia, D. and Mathiavaranam, R. (eds.), Evans on Defamation in Singapore and Malaysia, 3rd ed. (Singapore 2008), 104Google Scholar: in Meeran Lebhaik Maulllim v J Mohamed Ismail Marican (1926) 2 M.C. 85, alleging the plaintiff had engaged in conduct amounting to robbery was outside the defence because the publication did not include underlying facts; if they had been included, the defence could have been available if it was clear that “robbery” was a conclusion based on those facts.

83 Jeyaretnam v Goh Chok Tong (1989) 1 W.L.R. 1109, 1113.

84 See e.g. Fawcett v John Fairfax Publications [2008] NSWSC 139, at [148], per Simpson J.

85 Hamilton v Clifford [2004] EWHC 1542 (QB).

86 For an outline of Neil Hamilton's earlier involvement with defamation law, see Hooper, D., Reputations under Fire: Winners and Losers in the Libel Business (London 2000), 382–95Google Scholar.

87 Hamilton [2004] EWHC 1542, at [60].

88 Hamilton v Clifford [2004] EWCA Civ 1407, at [19], per Pill L.J. (Jonathan Parker L.J. agreed).

89 See also note 148 below.

90 Hamilton [2004] EWHC 1542, at [21], [30].

91 Separately, the complainant had been convicted in relation to the allegations: ibid., at para. [3].

92 On the concept of levels of meaning in defamation, see e.g. Parkes and Mullis (eds.), Gatley, 12th ed., para. [3.28]; Collins, Collins on Defamation, paras. [6.89]–[6.92]; Kenyon, A.T., Defamation: Comparative Law and Practice (London, 2006)Google Scholar, ch. 4.

93 It is also notable that, prior to the Human Rights Act, there was no reference to “value judgment” in reported English judgments on fair comment. The first English defamation case to mention “value judgment” was Derbyshire County Council v Times Newspapers [1992] QB 770, where the Court of Appeal referred to Lingens v Austria (1986) 8 EHRR 407, in acknowledging the relevance of Article 10 to civil defamation. The first fair comment mention of value judgments was Eady J. in Branson v Bower (No. 1) (Queen's Bench Division, 21 November 2000), which is quoted at length on appeal in Branson v Bower [2001] EMLR 32 at [8].

94 Branson [2001] EMLR 32.

95 Ibid., at para. [11].

Ibid

96 Ibid., at para. [13].

Ibid

97 Branson (Queen's Bench Division, 21 November 2000), 24.

98 E.g. ibid., at pp. 14–18 (summarising arguments of counsel framed in terms of value judgments and based on European law).

99 Ibid., at pp. 22–23 (footnotes omitted).

Ibid

100 Hamilton [2004] EWHC 1542, at [58].

101 Ibid.

Ibid

102 Ibid., at para. [60].

Ibid

103 Keays v Guardian Newspapers [2003] EWHC 1565 (QB).

104 Ibid., at para. [49].

Ibid

105 Branson v Bower [2002] 2 Q.B. 737 at [1].

106 Campbell v Safra [2006] EWHC 819 (QB).

107 Ibid., at para. [30].

Ibid

108 Pena v Tameside Hospital NHS [2011] EWHC 3027 (QB), at [27], [29]. See to similar effect Horlick v Associated Newspapers [2010] EWHC 1544, at [24], per Eady J.

109 British Chiropractic Association v Singh [2009] EWHC 1101 (QB).

110 Ibid., at para. [1].

Ibid

111 Ibid., at para. [4].

Ibid

112 Ibid., at paras. [12]–[13].

Ibid

113 Ibid., at para. [14].

Ibid

114 Dakhyl [1908] 2 K.B. 325; see note 56 above and text.

115 Price and McMahon, Blackstone's Guide, p. 44, note the first instance judgment “led to a media furore”; for academic responses, see e.g. E. Barendt, “Science Commentary and the Defence of Fair Comment to Libel Proceedings” (2010) 2 J.M.L. 43; P. Mitchell, “The Scope of Fair Comment” (2010) 126 L.Q.R. 525.

116 British Chiropractic Association [2011] 1 W.L.R. 133, at [16]–[19].

117 Ibid., at para. [18].

Ibid

118 Mitchell, “The Scope of Fair Comment”, p. 526.

119 British Chiropractic Association [2011] 1 W.L.R. 133, at [18]–[19].

120 Joseph [2011] 1 A.C. 852.

121 Joseph v Spiller [2009] EWHC 1152 (QB) at [58]-[59].

122 Joseph v Spiller [2010] EMLR 7, at [30]–[31], per Pill L.J. (Hopper and Wilson L.JJ. agreed).

123 Joseph [2011] 1 A.C. 852, at [27].

124 Ibid., at para. [117], per Lord Phillips S.C.P. (Lord Roger and Lord Walker S.C.JJ. agreed).

Ibid

125 Ibid., at para. [82].

Ibid

126 Jeyaretnam (1989) 1 W.L.R. 1109; see note 82 above and text.

127 Joseph [2011] 1 A.C. 852, at [114]. See B. Pillans, “A Storm in a Teacup or a Landmark Case? Joseph v Spiller” (2011) 16 Comms.L. 31; Hamilton [2004] EWHC 1542 (QB); British Chiropractic Association [2009] EWHC 1101 (QB).

128 Joseph [2011] 1 A.C. 852, at [114].

129 Ibid., citing Jeyaretnam (1989) 1 W.L.R. 1109.

Ibid

130 Joseph [2011] 1 AC 852, at [117].

131 E.g. Parkes and Mullis (eds.), Gatley, 12th ed., cites both Rath v Guardian News and Media [2008] EWHC 398 (QB) and Cook v Telegraph Media Group [2011] EWHC 1134 (QB) but not on this point; C. Doley and A. Mullis (eds.), Carter-Ruck on Libel and Privacy, 6th ed. (London 2010) cites Rath but not on this point; D. Price, K. Duodo, and N. Cain, Defamation Law, Procedure and Practice, 4th ed. (London 2009) cites Rath but not on this point (but see para. [9.03], sub-paras. 3–6, where factual inferences are discussed). However, Collins, Collins on Defamation, cites Rath directly on this point at para. [9.12], and cites Cook at para. [9.10] although not on this point. In addition, the previous edition of Gatley quotes Rath at para. [12.7] and note 44, but does not address the doctrinal implications considered here: Milmo, P. and Rogers, W.V.H. (eds.), Gatley on Libel and Slander, 11th ed. (London 2008)Google Scholar, at [12.7].

132 Rath [2008] EWHC 398 (QB).

133 Ibid., at para. [65].

Ibid

134 Cook [2011] EWHC 1134 (QB).

135 Ibid., at para. [7], emphasis added.

Ibid

136 Lingens (1986) 8 EHRR 407.

137 Joseph [2011] 1 A.C. 852, at [46].

138 There was a similar tendency in relation to the term “value judgment” although it had at least been noted before the Human Rights Act: see note 92 above.

139 See e.g. Clayton, R. and Tomlinson, H. (eds.), Privacy and Freedom of Expression, 2nd ed. (Oxford 2010)Google Scholar, at [15.319].

140 Scharsach and News Verlagsgesellschaft v Austria (Application no. 39394/98), Judgment of 13 November 2003, not yet reported.

141 Flux & Samson v Moldova (Application no. 28700/03), Judgment of 23 October 2007, not yet reported.

142 Ungváry v Hungary (Application no. 65420/10), Judgment of 3 March 2014, not yet reported.

143 Ibid., at para. [58].

Ibid

144 Reynolds v Times Newspapers Ltd. [2001] 2 A.C. 127 (HL).

145 While the Reynolds defence emerged as an extended form of duty-interest qualified privilege, more recent judicial opinion saw it as having an independent jurisprudential foundation: see e.g. Jameel v Wall Street Journal Sprl (No 3) [2006] UKHL 44; [2007] 1 AC 359, 382, at [50], per Lord Hoffmann, 408, at [146], per Baroness Hale; Flood v Times Newspapers [2012] UKSC 11; [2012] 2 A.C. 273, 288, at [38], per Lord Phillips.

146 See e.g. J. Bosland, “Republication of Defamation under the Doctrine of Reportage: The Evolution of Common Law Qualified Privilege in England and Wales” (2011) 31 Oxford J.L.S. 89.

147 Reynolds [2001] 2 A.C. 127 (HL), 192–98.

148 Jameel [2006] UKHL 44; [2007] 1 A.C. 359, 377, at [32], per Lord Bingham.

149 A third reason had been raised in Gatley on Libel and Slander; namely that protecting verifiable factual inferences would make “large inroads” into the “repetition rule”: see Milmo and Rogers (eds.), Gatley, 11th ed., para. [12.7]; Parkes and Mullis (eds.), Gatley, 12th ed., para. [12.10]. However, it is unclear why this would follow. If the repetition rule requires repeated defamatory allegations to be defended by justification, it is not raised by a publication which repeats true facts and makes a defamatory inference based on them. Nor would inroads be made on the repetition rule by a publication that repeated a defamatory inference but did not repeat nor sufficiently indicate the underlying facts. In that instance (presuming the underlying facts were not notorious), the later publication would fall outside the comment defence.

150 Joseph [2011] 1 A.C. 852, at [114].

151 Ibid.

Ibid

152 Hunt [1908] 2 K.B. 309, 320–21.

153 Dakhyl [1908] 2 K.B. 325n, 329n; Lefroy (1879) 4 L.R. (Ir) 556, 566; Campbell (1863) 3 B. & S. 769, 776–77. See also Homing Pigeon Co. v Racing Pigeon Co. (1913) 29 T.L.R. 389, 390–91; Peter Walker v Hodgson [1909] 1 K.B. 239, 253.

154 Jaffey, “The Right to Comment”, pp. 69–70.

155 See e.g. Milmo and Rogers (eds.), Gatley, 11th ed., para. [12.24]. Note also criticisms that protecting reputation should not be justified by reference to outdated notions of honour: see e.g. D. Howarth, “Libel: Its Purpose and Reform” (2011) 74 M.L.R. 845; D. Rolph, Reputation Celebrity and Defamation Law (Hampshire 2008), 25–27.

156 Campbell (1863) 3 B. & S. 769, 776–77.

157 For commentary, see e.g. Milmo and Rogers (eds.), Gatley, 11th ed., para. [12.24]; see also further discussion in P. Milmo and W.V.H. Rogers (eds.), Gatley on Libel and Slander, 9th ed. (London 1998), at [12.24]–[12.26].

158 United Kingdom, Report of the Committee on Defamation, paras. [167]–[169].

159 Branson [2002] QB 737, 746. Note also Silken [1958] 1 W.L.R. 743, where the general principle applied despite an allegation of dishonourable motives.

160 See e.g. Telnikoff v Matusevitch [1992] 2 A.C. 343, 357, per Lord Archer.

161 See Merivale v Carson (1887) 20 Q.B.D. 275, 280, per Lord Esher, and Tse Wai Chun Paul [2001] EMLR 31, at [20], as endorsed by the Supreme Court in Joseph [2011] 1 A.C. 852, at [105].

162 For analysis of reputation and Article 8, see T. Aplin and J. Bosland, “The Uncertain Landscape of Article 8 of the ECHR: The Protection of Reputation as a Fundamental Right?” in A.T. Kenyon (ed.), Comparative Defamation and Privacy Law (Cambridge forthcoming). See also A. Mullis and A. Scott, “The Swing of the Pendulum: Reputation, Expression and the Re-Centring of English Libel Law” (2012) 63 N.I.L.Q. 27.

163 See e.g. Jerusalem v Austria (2003) 37 EHRR 25, at [43].

164 In Lindon, Otchakovsky-Laurens and July v France (2008) 46 EHRR 35 (GC), the Grand Chamber stated (at para. [5]) “[a]s a general rule, the Court considers that the necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances”.

165 See e.g. Dichand v Austria (Application no. 29271/95), Judgment of 26 February 2002, not yet reported, where particularly severe criticism of a politician was protected as a value judgment despite having a “slim” factual basis.

166 Axel Springer AG v Germany (2012) 55 EHRR 6, at [83].

167 See e.g. Pfeifer v Austria (2007) 48 EHRR 175, at [45].

168 See e.g. Handyside v United Kingdom (1976) 1 EHRR 737, at [49]; Lindon, Otchakovsky-Laurens and July (2008) 46 EHRR 35 (GC), at [45].

169 See e.g. Evans v United Kingdom (Application no. 6339/05), Judgment of 10 April 2007, not yet reported; Dickson v United Kingdom (Application no. 44362/04), Judgment of 4 December 2007, not yet reported, at [78].

170 See e.g. Tammer v Estonia (2003) 37 EHRR 43; Ungvary v Hungary (Application no. 64520/10), Judgment of 3 December 2013, not yet reported, at [47]. See also Fenwick, H. and Phillipson, G., Media Freedom under the Human Rights Act (Oxford 2006), 69Google Scholar.

171 The defence was struck out for want of public interest in Andre v Price [2010] EWHC 2572 (QB).

172 See G. Phillipson, “The ‘Global Pariah’, the Defamation Bill and the Human Rights Act” (2012) 63 N.I.L.Q. 149. Cf. Parkes and Mullis (eds.), Gatley, 12th ed., para. [12.36], where it is said that, given that the defence excludes liability on the basis of “recognisability as individual viewpoints only”, “[w]hether they relate to the public interest is arguably neither here nor there”.

173 Axel Springer AG (2012) 55 EHRR 6, at [83].

174 Note s. 1(1) of the Data Protection Act 1998 defines “personal information” to include “any expression of opinion about the individual”.

175 See e.g. Joseph [2011] 1 A.C. 852, at [105]. See also notes 14–17 above and text.

176 Defamation Act 2013, ss. 3(3) and (4). See also note 18 above.

177 Jaffey, “The Right to Comment”, p. 70.

178 Parkes and Mullis (eds.), Gatley, 12th ed., para. [12.10].

179 See e.g. Lewis v Daily Telegraph [1964] A.C. 234, 285, per Lord Devlin.

180 See e.g. the literature commented on by H. Young, “‘Anyone … in Any Medium’? The Scope of Canada's Responsible Communication Defence” in Kenyon (ed.), Comparative Defamation, ch. 2.

181 See notes 131–134 above and accompanying text.

182 Descheemaeker, “Three Errors”, emphasis in original.

183 Slim [1968] 2 Q.B. 157, 170.

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