Fair comment

The former defence of fair comment was about the right to express opinions.

 

 

The defences to an action for defamation used to include the common law defence of fair comment. The Defamation Act 2013 which came into force on the 1 January 2014 replaced this defence with a defence of 'honest opinion'. The 2013 Act in effect codified the law by abolishing the common law. The defence of fair comment was about the right to express opinions and allowed the press freedom where comment is of public interest London Artist Ltd v Littler (1969). See also Reynolds v. Times Newspapers Limited and Others.

 

There were a number of limitations to the former defence, for example the opinion must have been based on facts Kemsley v Foot (1952), furthermore the defence would falter if it could be established that there was malice Thomas v Bradbury, Agnew & Co Limited (1906).

 

It was not necessary for the former defence to succeed for the defendant to show an honest belief in the comments but it is necessary for the comment to be 'fair' Telnikoff v Matusevitech (1992).

 

The Defamation Act and the new defence of honest opinion broadly reflects the former law although simplifying and clarifying certain elements. To this end, Section 3 of the Defamation Act now lays down conditions which must be met for the defence to apply. However the former requirement for the opinion to be on a matter of public interest is now no longer required for the defence of honest opinion but a separate defence of publication on a matter of public interest is now contained in Section 4 of the 2013 Act.

 

The defence of honest opinion is intended to follow the former common law principles which operated under the old defence of fair comment as established by the case of Reynolds v Times Newspapers (2001).

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