Journalists have long enjoyed the freedom to make defamatory remarks so long as they stick within the limits of honest opinion or the truth.

As a top judge said in a case during the Second World War, 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.

But a recent case has highlighted the problems that arise where a writer is found to have over-stepped the mark.

The Daily Telegraph was successfully sued over book review by acclaimed journalist, Lynn Barber, which defamed the book’s author, Dr Sarah Thornton, and contained false statements.

The unflattering review of the book, Seven Days in the Art World, waspishly described Dr Thornton as a “decorative Canadian with a…seemingly limitless capacity to write pompous nonsense”.

It went on to suggest Dr Thornton had dishonestly claimed in the book to have interviewed Ms Barber (‘the interview allegation’).  It also suggested disparagingly that Dr Thornton gave certain people she interviewed the right of ‘copy approval’.

Sued for libel over the interview allegation, the newspaper tried to run an ‘Offer of Amends’ defence, which is the statutory procedure under the Defamation Act that ordinarily serves to reduce by up to 50% the damages payable for a libel, in conjunction with the publication of a suitable apology and payment of the claimant’s costs.

However, this statutory defence is not available if the person making the Offer knew, or had reason to believe, that the defamatory statement in question was both false and defamatory of the claimant.

The Telegraph’s defence failed because the trial judge decided Ms Barber knew the interview allegation was false when she wrote the review.

Ms Barber had in fact been interviewed for by Dr Thornton, and she was judged to have been able to recollect that fact at the time when she falsely asserted in the review that she had not been interviewed.

Accordingly, the judge awarded a full £50,000 in damages for the indefensible libel, without any reduction.

The newspaper was also successfully sued for malicious falsehood.  The ‘copy approval’ allegation was judged to be likely to cause pecuniary damage to Dr Thornton as a professional writer and academic.  The judge decided Ms Barber knew this allegation, too, was false when she wrote it.  He awarded £15,000 in damages for that.

The case is a reminder of the risks surrounding reviews, columns and comment pieces.

Despite the broad leeway that the law now allows for honest opinion (see HTFP law columns 06.04.10 and 14.12.10), major pitfalls remain – such as being left with no defence whatsoever – where untrue defamatory or financially damaging statements are knowingly or recklessly made.

The Telegraph was reported to be planning an appeal.

• Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.