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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Branson v Bower  EWCA Civ 791 (24 May 2001)
Cite as:  EMLR 800,  EWCA Civ 791,  EMLR 32
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
Thursday 24th May 2001
B e f o r e :
The Rt Hon SIR PHILIP OTTON
|- and -
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Michael Tugendhat, QC (instructed by Reynolds Porter Chamberlain for the Respondent)
Crown Copyright ©
LORD JUSTICE LATHAM:
"Finally, I feel I should address a point that I know a lot of people will be thinking: What's in it for me? Well, firstly, the bid is completely separate - structurally, legally, organisationally - from Virgin. Its a Peoples Lottery Bid, put together by me, not a Virgin bid. Secondly, I am not looking for any advantage. I saw the wonderful affect the Irish Lottery was having back in 1988 and I wrote to Mrs Thatcher, the then Prime Minister, suggesting that the UK should start one too. Every other country in Europe had one including Albania, so it was hardly radical thinking. But I believed then that it could be a huge force for good and a little harmless fun and I still believe that today. Happily, I am in a position to do something about it. If run properly, it can be a force for good and a little harmless fun. It doesn't need shareholders making huge profits to incentivise them. The incentives of doing it well and in generating huge sums for good causes, which benefit everyone, would seem to me to be incentive enough"
"Revenge rather than pure self righteousness has motivated Richard Branson's latest bid to run Britain's Lottery. Ever since that fateful day in May 1994 when he emerged from his Holland Park mansion in tears complaining about the "nasty little fax" announcing that his bid for the lottery had been rejected, Branson has fumed and campaigned against Camelot and the Lottery Regulator. ........
Yesterday all traces of that emotion had been expunged for his announcement that "The People's Lottery" a limited company owned entirely by Branson, would be Camelot's only challenger ........
Sceptics will inevitably whisper that Branson's motive is self glorification. Many will carp that his promise of private charity fund based on his lottery company's profits will be his excuse to appear every week on national television to personally represent a Virgin cheque to a worthy cause. His critics will also scorn the professional self-publicist for seeking a major opportunity to regularly promote the Virgin brand on the BBC TV at no expense to himself.....
Undoubtedly that silence will be disregarded by the new Lottery Commission. An applicant's ambition, vanity and self promotion is not relevant to his ability to run the lottery better than Camelot."
"In this jurisdiction it happens that we have a civil law of defamation which is sophisticated and highly developed and includes a range of defences for the media. Furthermore it has been stated on a number of occasions, at the highest judicial level, that our law in this respect is consistent with the imperatives and safeguards of the European Convention. (See for example the remarks of Lord Goff in Attorney General -v- Guardian Newspapers (No 2)  1 AC 109 at page 283 to 4, and of Lord Keith in Derbyshire County Council -v- Times Newspapers  AC 534, at 551) It is clearly my duty to apply English domestic law and, in doing so, to have regard to the principles of the Convention as explained and developed in Strasbourg.
It cannot be stated baldly, in my judgment, as a matter of English law, that a defendant can be exonerated from the need to prove the truth of factual defamatory statements if it is unreasonable or impossible to do so. It is well established, for example, that a person is regarded as having a good name, and defamatory words are presumed to be false unless and until a defendant takes on the burden of proving them to be true. That principle was reaffirmed as recently as March 1999 in the Court of Appeal in MacDonald's Corporation -v- Steel & Anr [unreported]. Nevertheless the law of defamation recognises that it is unreasonable to require a defendant to prove the truth of every defamatory statement, and provision is duly made. For example, we have the rule that a defendant only has to prove the libel to be substantially true. What has to be justified is the real "sting" of the libel. That principle has been supplemented by s. 5 of the Defamation Act 1952.
If the allegations can truly be classified as comment rather than fact, then a defendant is not required to prove the words to be objectively true. He will have a complete defence if he can bring himself within the defence of fair comment. There may be difficulties, on any given set of facts, about whether the words are to be classified as comment or not, but the principle is clear. So, too, a journalist will not be required to prove words to be true if they were published pursuant to a legal, social or moral duty and the subject matter was of legitimate public interest. See e.g. Blackshaw -v- Lord  QB1 and Reynolds -v- Times Newspapers to which I have already referred.
It is by affording defences of this kind that English law gives effect to the general (and in itself uninformative) proposition that it is not always reasonable for a journalist, or other defendant in libel proceedings, to have to establish the objective truth of what he has said. I must be guided by these principles, rather than deciding subjectively whether, on the facts of this or any other case, it seems to me reasonable for a defendant to have to establish a defence of justification. It is necessary, after all, to remember that the European Convention itself values predictability and certainty so that citizens can know so far as possible, if necessary with legal advice, what the legal consequences of their conduct may be.
Furthermore exceptions to the right to freedom of expression as contemplated by Article 10(2) must be "prescribed by law", whether it be judge-made common law or statutory provision. That is a further reminder that one has to apply domestic law, so far as one's limitations permit, in a principled and rational manner. If one applies the English Law of defamation properly, there should be no reason to think that the principles underlying the Convention are infringed. One area in which there might appear to be a divergence, relevant in the present case, between English jurisprudence and that of Strasbourg is that relating to how to treat a journalist's attribution of motives. The traditional English view is exemplified in the words of Bowen LJ in Edgington -v- Fitzmaurice  29 ChD 459, at page 483 to the effect that:
"The state of a man's mind is as much a fact as the state of his digestion"
This approach has in the past been reflected also in the law of fair comment. See, for example Campbell -v- Spottiswoode  B&S 769 at page 776 and the discussion in Gatley on Libel and Slander (9th Edition) at paragraphs 12.24 to 12.26. More recently, however, the courts have been readier to treat the attribution of motive, in some cases, as matters of inference or comment. Miss Page submits that they should, indeed, be even readier to do so in the light of Neilson & Johnsen -v- Norway. In the end, however, as the court in Strasbourg recognised, any such classification must depend upon the words actually used and upon their context.
In any event, the boundary between fair comment and justification sometimes becomes a little fuzzy when the court has to address defamatory words couched in the form of the author's inferences of fact from the material set out or referred to in the body of an article. English law recognises in such cases that the validity of inferences can be a matter of opinion and thus susceptible to a defence of fair comment. Thus, if a journalist makes inferences as to someone's motives, that may be treated as the expression of an opinion even though the inference drawn may be to the effect that there exists a certain state of affairs (including a state of mind): see Gatley (9th Edition) paragraph 12.10 and Kemsley -v- Foot  AC 345, page 356. I see no obvious inconsistency between these important principles of English law and what was said so recently in Neilson & Johnsen -v- Norway at paragraph 50. It was clear that the court in Strasbourg was addressing the wording of particular statements in their context, and that they were intended to convey the applicants' own opinions. It was also said that they were thus akin to value judgments. I do not need to go so far as to draw any such analogy here. The first ruling I have to give is whether the words complained of should be classified now as comment or fact; or whether I should leave the issue to be resolved by the jury at trial as Miss Rogers submits is the appropriate course.
In my judgment, Mr Bower seems to have been expressing a series of opinions about the motives of the claimant, based on inferences from facts identified or referred to in his article. In order for fair comment to succeed, Mr Bower will need to prove the underlying facts from which the inference is drawn. He will need also at trial to pass the usual objective test that operates in the law of fair comment; that is to say, to show that the opinions are such that a reasonable person could hold them in the light of the facts proved at trial (or admitted). It will be for Sir Richard Branson, if he can, then to prove that Mr Bower was malicious in what he wrote.
Miss Page has pointed out that any reasonable reader will see straight away from the nature of the allegations, relating as they do to the claimant's state of mind, that Mr Bower cannot have direct knowledge and that he must accordingly have been expressing his own views or inferences. There is here no uncertainty about that, such as to require the jury to express its own conclusion on the issue of fact or comment. I am bound to say that I agree with Miss Page's submission about that."
"In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews -v- Chapman. The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice which it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer, though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair minded men to reject the inference. In the other case it merely points the existence of extrinsic facts the writer considers to warrant the language which he uses. Any matter, therefore, which does not indicate with reasonable clearness but purports to be comment and not statement of fact, cannot be protected by the plea of fair comment."
"More accurately it has been said that the sense of comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.""
SIR PHILIP OTTON:
"Revenge rather than self righteousness has motivated Richard Branson's latest bid to run Britain's Lottery."