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Fair comment victory for the press in Court of Appeal



Freedom of expression for critics and commentators has been upheld by the Court of Appeal in an important ‘fair comment’ victory in a libel case.

The case would have been a chilling precedent for the media if the libel claimant’s arguments had won the day.

Composer Keith Burstein, co-writer of an opera about a would-be suicide bomber, sued the Evening Standard newspaper after it published a critic’s review of the work, Manifest Destiny.

The review concluded by saying: “But I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult.”

Burstein claimed the article was capable of bearing the defamatory meanings that (i) he is a sympathiser with terrorist causes, and (ii) he applauds the actions of suicide bombers and raises them to the level of heroism.

The Evening Standard applied for Burstein’s two alleged meanings to be struck out, and for summary judgment in its favour on the basis that the review was not defamatory as alleged, or if it was, it was unarguably fair comment on a matter of public interest.

In the High Court, Mr Justice Eady refused the newspaper’s application, saying the case should be left to a jury to decide. He declined to intervene and stop the claim in its tracks. He said: “It is difficult to say that a jury would be ‘perverse’ not to uphold the fair comment defence.”

The Court of Appeal disagreed.

Lord Justice Keene quoted with approval the following passage from an early libel case called Carr v Hood.

“It is not libellous to ridicule a literary composition, or the author of it, insofar as he has embodied himself with his work…Every man who publishes a book commits himself to the judgment of the public, and anyone may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right.”

Their Lordships had to decide three issues: whether the judge had been wrong to hold the review was capable of bearing the meanings alleged by Burstein; whether the article was capable of being held by a jury to be a statement of fact rather than comment; and whether the article, if comment, was based on true facts and expressed a view which could be honestly held by the author.

On the first point, they rejected Burstein’s first alleged meaning but decided that the jury could conceivably find that the review was capable of meaning that in this particular opera Burstein applauded the action of suicide bombers and raised them to the level of heroism.

Second, they found the article was not capable of being interpreted as a statement of fact. In particular, it was clearly a press article within a newspaper’s arts review section, by a critic expressing her own views. Its concluding sentence, quoted above, drew a permissible inference from facts that were set out for readers in the review.

The fact that readers might conceivably understand the review to attribute a motive to Burstein himself was insufficient to take it out of the category of comment, or beyond the scope of the fair comment defence.

Third, they found that all the other necessary elements of the fair comment defence were made out. The review’s summary of the opera was factually accurate. A critic could honestly hold the opinion that was expressed, and no one disputed that the comment was on a matter of public interest.

Accordingly, Burstein’s claim was struck out and he was ordered to pay costs. Summary judgment was entered in favour of the Evening Standard.

The appeal court clearly felt Mr Justice Eady should have taken a more robust approach in case-managing, and ending, the misguided libel claim at the earliest opportunity.

It said it would be “an abdication of judicial responsibility” not to overrule his incorrect approach to the case.

Citing a European ruling on freedom of expression, it also noted that a writer should not be required to prove that his value judgments are objectively valid.

Cathryn Smith, a partner in Foot Anstey’s media team, acted for the newspaper.