BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Telnikoff v Matusevich [1991] UKHL 16 (14 November 1991)
URL: http://www.bailii.org/uk/cases/UKHL/1991/16.html
Cite as: [1991] UKHL 16, [1992] 2 AC 343

[New search] [Context] [Printable version] [Buy ICLR report: [1992] 2 AC 343] [Help]


JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/251

    Telnikoff (Appellant)

    v.
    Matusevitch (Respondent)

    JUDGMENT

    Die Jovis 14° Novembris 1991

    Upon Report from the Appellate Committee to whom was
    referred the Cause Telnikoff against Matusevitch, That the
    Committee had heard Counsel as well on Monday the 15th as on
    Tuesday the 16th and Wednesday the 17th days of July last,
    upon the Petition and Appeal of Vladimir Ivanovich Telnikoff
    of Garden Flat, 26 Northwood Road, London, N6 5TP, praying
    that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal of
    the 16th day of May 1990, might be reviewed before Her Majesty
    the Queen in Her Court of Parliament and that the said Order
    might be reversed, varied or altered or that the Petitioner
    might have such other relief in the premises as to Her Majesty
    the Queen in Her Court of Parliament might seem meet; as upon
    the case of Vladimir Matusevitch lodged in answer to the said
    Appeal; and due consideration had this day of what was offered
    on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 16th day of May 1990 complained of in the said
    Appeal be, and the same is hereby, Set Aside and that the
    Order of Mr. Justice Drake of the 25th day of May 1989 be,
    and the same is hereby, Set Aside: And it is further Ordered,
    That the Cause be, and the same is hereby, remitted back to
    the Queen's Bench Division of the High Court of Justice with a
    direction that it be left to a jury to determine whether
    paragraphs 6 and 7 of the respondent's letter constituted pure
    comment or whether they contained defamatory statements of
    fact: And it is also further Ordered, That the Respondent do
    pay or cause to be paid to the said Appellant the Costs
    incurred by him in the proceedings before Mr. Justice Drake,
    one-half of the costs incurred by him in the Court of Appeal
    and also one-half of the Costs incurred by him in respect of
    the said Appeal to this House, the amount of such last-
    mentioned Costs to be certified by the Clerk of the
    Parliaments if not agreed between the parties.

    Cler: Parliamentor:

    Judgment: 14.11.91

    HOUSE OF LORDS

    TELNIKOFF
    (APPELLANT)

    v.

    MATUSEVITCH
    (RESPONDENT)

    Lord Keith of Kinkel
    Lord Brandon of Oakbrook
    Lord Templeman
    Lord Ackner
    Lord Oliver of Aylmerton


    LORD KEITH OF KINKEL

    My Lords,

    This is an action for libel brought by one Russian emigre
    against another. On 13 February 1984 the plaintiff, Mr.
    Telnikoff, was employed by the B.B.C. Russian service as a
    probationer. On that date the "Daily Telegraph" newspaper
    published an article written by him headed "Selecting the right
    wavelength to tune in to Russia." Having set out the history of
    broadcasting to Russia, the article continued:

    "But still, after three decades of gradually becoming aware
    of the significance of Russian language broadcasting, I
    believe its general concept has never been set right. It
    continues to reflect the fatal confusion of the West, which
    has yet to clarify to itself whether it is threatened by
    Russia or by Communism. We fail to understand that
    Communism is as alien to the religious and national
    aspirations of the Russian people as those of any other
    nation.

    "This confusion further manifests itself in the policy of
    recruitment for the Russian Service. While other services
    are staffed almost exclusively from those who share the
    ethnic origin of the people to whom they broadcast, the
    Russian Service is recruited almost entirely from Russian-
    speaking national minorities of the Soviet empire, and has
    something like 10 per cent of those who associate
    themselves ethnically, spiritually or religiously with Russian
    people. However high the standards and integrity of that
    majority there is no more logic in this than having a Greek
    Service which is 90 per cent. recruited from the Greek-
    speaking Turkish community of Cyprus.

    "When broadcasting to other East European countries, we
    recognise them to be enslaved from outside, and better able
    to withstand alien, Russian, Communism through our
    assertion of their own national spirit and traditions.

    - 1 -

    However, this approach, leaves room for flirting with Euro-
    communism or 'socialism with a human (non-Russian) face'
    as a desirable future alternative, and well suits the Left in
    the West.

    "Resisting the ideological advance of Communism by
    encouraging anti-Russian feelings is of less obvious value
    with a Russian audience. Making 'Russian' synonymous with
    'Communist' alienates the sympathetic Russian listeners. It
    stirs up social resentment in others against the Russians.
    Making those words synonymous also makes sympathy for
    Russia into support for the Communist system."

    The defendant, Mr. Matusevitch, is a Russian Jew who
    suffered persecution there before emigrating. He was at the time
    of publication of the article employed in London by Radio Liberty,
    a United States radio station. Having read the article he wrote a
    letter to the "Daily Telegraph" which published it on 18 February
    1984. The terms of the letter, the paragraphs of which I have
    numbered for ease of reference, were these:

    1. "Sir - Having read 'Selecting the Right Wavelength to Tune
      in to Russia' (Feb 13) I was shocked particularly by the part
      on alleged inadequacies of the B.B.C.'s Russian Service
      recruitment policies.

    2. "Mr. Vladimir Telnikoff says: 'While other services are
      staffed almost exclusively from those who share the ethnic
      origin of the people to whom they broadcast, the Russian
      Service is recruited almost entirely from Russian-speaking
      national minorities of the Soviet empire.

    3. "Mr. Telnikoff must certainly be aware that the majority of
      new emigres from Russia are people who grew up, studied
      and worked in Russia, who have Russian as their mother
      tongue and have only one culture - Russian.

    4. "People with Jewish blood in their veins were never allowed
    by the Soviet authorities to feel themselves equal with
    people of the same language, culture and way of life.
    Insulted and humiliated by this paranoic situation, desperate
    victims of these Soviet racialist (anti-Semitic) policies took
    the opportunity to emigrate.

    1. "Now the B.B.C.'s Russian Service, as well as other similar
      services of other Western stations broadcasting to Russia,
      who are interested in new staff members (natives) employ
      those people in accordance with common democratic
      procedures, interested in their professional qualifications and
      not in the blood of the applicants.

    2. "Mr. Telnikoff demands that in the interest of more
      effective broadcasts the management of the B.B.C.'s Russian
      Service should switch from professional testing to a blood
      test.

    3. "Mr. Telnikoff is stressing his racialist recipe by claiming
      that no matter how high the standards and integrity 'of
      ethnically alien' people Russian staff might be, they should
      be dismissed.

    - 2 -

    1. "I am certain the Daily Telegraph would reject any article
      with similar suggestions of lack of racial purity of the
      writer in any normal section of the British media.

    2. "One could expect that the spreading of racialist views
      would be unacceptable in a British newspaper."

    The plaintiff took strong exception to this letter. Solicitors
    instructed by him wrote to the defendant demanding an apology,
    which was not given, and on 18 April 1984 they issued a writ for
    libel against him, followed next day by a statement of claim,
    which set out the terms of the defendant's letter and pleaded in
    paragraph 4:

    "In their natural and ordinary meaning the said words meant
    and were understood to mean that the Plaintiff

    (i) Advocated the introduction of blood-testing as part of
    the recruitment process of the BBC Russian Services,
    in order to maintain racial purity.

    (ii) Advocated the dismissal of employees of the BBC
    Russian Service, on racial grounds.

    (iii) Had made statements inciting racial hatred and/or
    racial discrimination.

    (iv) Was a racialist and/or an anti-semite and/or a
    supporter and/or proponent of doctrines of racial
    superiority or racial purity."

    The defendant pleaded fair comment in a matter of public
    interest, but not justification. The plaintiff alleged in reply that
    the defendant was actuated by express malice.

    On 5 October 1988 the action came to trial, in the
    defendant's absence, before Michael Davies J. and a jury. The
    plaintiff was awarded damages of £65,000 and costs. However, on
    28 April 1989 Michael Davies J., on the defendant's application,
    set aside the judgment and ordered a re-trial, which took place
    before Drake J. and a jury, starting on 22 May 1989. The
    plaintiff conducted his own case and the defendant was represented
    by counsel. At the close of the plaintiff's case on 24 May it was
    submitted to the judge on behalf of the defendant that there was
    no case to go before the jury, in respect that (1) any reasonable
    jury properly directed would be bound to sustain the defence of
    fair comment, and (2) there was no evidence of express malice.
    Drake J. upheld this submission. The plaintiff appealed to the
    Court of Appeal [1991] 1 Q.B. 102 (Lloyd, Glidewell and Woolf
    L.JJ.), which dismissed the appeal but granted leave to appeal to
    your Lordships' House, which the plaintiff now does.

    The first matter considered by Drake J. and the Court of
    Appeal was whether those parts of the defendant's letter which
    were defamatory in character, in particular paragraphs 6 and 7,
    were capable of being regarded as statements of fact or could
    only properly be held to be comment. Since justification was not
    pleaded the plaintiff would necessarily succeed if the jury, the

    - 3 -

    issue being left to them, were to decide that these paragraphs
    contained statements of fact. Drake J. said that on a
    consideration of the letter as a whole he had no doubt that these
    paragraphs constituted comment. If he had felt arty doubt about
    the matter he would presumably have left it to the jury to decide,
    having regard to the law as stated in Halsbury's Laws of England,
    4th ed., (1979) vol. 28, para 228:

    "The question whether all or some of the words complained
    of are statements of fact or comments is a question of
    construction for the judge. If, in his opinion, there is no
    reasonable doubt, he must direct the jury accordingly; but
    if, in his view, there is reasonable doubt as to whether the
    words are statements of fact or expresions of opinion he
    must leave it to the jury to decide."

    In the Court of Appeal Lloyd L.J. expressed the opinion that
    the paragraphs in question could clearly amount only to comment,
    whether regard was had only to the terms of the letter as a whole
    or whether, as he thought to be correct, the contents of the
    plaintiff's article were also taken into account. Glidewell and
    Woolf L.JJ., on the other hand, took the view that if the letter
    alone were looked at it would be arguable whether what was
    contained in the offending paragraphs was statement of fact or
    comment. But they both considered that the letter should be read
    along with the contents of the plaintiff's article, and that when
    that was done the only possible view was that the paragraphs in
    question constituted comment.

    I am of the opinion, in common I understand with the
    majority of your Lordships, that if the letter alone is looked at it
    would be open to a reasonable jury properly to find that the
    offending paragraphs contained statements of fact. Paragraph 2 of
    the letter quotes one sentence from the plaintiff's article.
    Paragraph 6 states, in the form of a statement of fact, that the
    plaintiff demands that the B.B.C. Russian Service should switch
    from professional testing to a blood test. It seems to me that
    this is capable of being read as describing something else that the
    plaintiff has said in his article. As regards paragraph 7, the words
    "Mr. Telnikoff is stressing his racialist recipe" are undoubtedly
    pure comment, but what follows "by claiming that no matter how
    high the standards and integrity 'of ethnically alien' people Russian
    staff may be, they should be dismissed" is in my view capable of
    being read as a fact upon which the defendant is commenting, that
    fact being that the plaintiff has made such a claim in his article.
    The reader might be the more likely to think that the plaintiff
    had made such a claim by reason that the words "of ethnically
    alien" are placed in inverted commas, thus indicating that they are
    a quotation from the article (where in fact no such words appear).
    Drake J. took the view that paragraphs 6 and 7 did no more than
    express what would be the logical outcome if the views stated in
    the plaintiff's article were given effect to, while Lloyd L.J. [1991]
    1 Q.B. 102, 111E said that the sense of the words in paragraph 6
    was "Mr. Telnikoff in effect demands . . .". But the fact remains
    that the writer of the letter has used no such words nor any
    others apt to indicate that what he has written are inferences
    drawn from the terms of the article.

    - 4 -

    The question then arises whether it is permissible to have
    regard to the whole terms of the plaintiff's article, not only the
    sentence from it quoted in the letter, in determining whether
    paragraphs 6 and 7 of the letter contain statements of fact or are
    pure comment. In my opinion the letter must be considered on its
    own. The readers of the letter must have included a substantial
    number of persons who had not read the article or who, if they
    had read it, did not have its terms fully in mind. If to such
    persons the letter appeared in paragraphs 6 and 7 to contain
    statements of fact about what the plaintiff had written in his
    article, which as I have already indicated might well be the case,
    then in the eyes of those persons the plaintiff would clearly be
    defamed. The matter cannot turn on the likelihood or otherwise
    of readers of the letter having read the article. In some cases
    many readers of a criticism of some subject matter may be
    familiar with that subject matter but in other cases very few may
    be, for example where that subject matter is a speech delivered to
    a limited audience. The principle must be the same in either
    case.

    Lloyd L.J. in the course of his judgment in the Court of
    Appeal was troubled by what he regarded as the anomaly that the
    jury should not be allowed to consider the terms of the article in
    deciding whether or not the letter contained only comment, but
    should be allowed to look at the article, if they decided that
    question affirmatively, for the purpose of deciding whether or not
    the comment was fair. For my part, I can see nothing undesirable
    about that situation. The jury would simply be directed in
    deciding the first question, to consider the effect of the letter on
    the mind of a person who had not read the article. Lloyd L.J.
    also considered that if juries were not allowed to consider the
    terms of articles upon which newspaper correspondents chose to
    comment, the whole text of the article would have to be set out
    in the letter, a condition which would be unacceptable to
    newspaper editors, so that free discussion of matters of public
    interest would be restricted. That apprehension is not, in my
    view, well founded. The writer of a letter to a newspaper has a
    duty to take reasonable care to make clear that he is writing
    comment, and not making misrepresentations about the subject
    matter upon which he is commenting. There is no difficulty about
    using suitable words for that purpose, such as those which Lloyd
    L.J. thought capable of being implied. Likewise any newspaper
    editor should be under no difficulty in observing whether his
    correspondent has used language apt to make clear that what he
    writes is pure comment and does not contain misrepresentations
    about what he is commenting on.

    Lloyd L.J. found support for his view in the speech of Lord
    Porter in Kemsley v. Foot [1952] A.C. 345, the "lower than
    Kemsley" case. That was not a case in which any issue arose as
    to whether the words complained of were a statement of fact or
    were comment. Lord Porter said, at p. 354:

    "It is not, as I understand, contended that the words
    contained in that article are fact and not comment: rather
    it is alleged that they are comment with no facts to
    support it. The question for your Lordships' decision is,
    therefore, whether a plea of fair comment is only
    permissible where the comment is accompanied by a

    - 5 -

    statement of facts upon which the comment is made and to
    determine the particularity with which the facts must be

    stated."

    It was held that the subject matter of the comment, namely the
    Kemsley Press, had been indicated with sufficient clarity to justify
    comment being made, that subject matter being well known to the
    public generally. The defendant had pleaded particulars of facts
    about the Kemsley Press which were founded on as indicating that
    the comment was fair. Lord Porter said, at pp. 355-356:

    "If an author writes a play or a book or a composer
    composes a musical work, he is submitting that work to the
    public and thereby inviting comment. Not all the public
    will see or read or hear it but the work is public in the
    same sense as a case in the Law Courts is said to be heard
    in public. In many cases it is not possible for everyone who
    is interested, to attend a trial, but in so far as there is
    room for them in the court all are entitled to do so, and
    the subject-matter upon which comment can be made is
    indicated to the world at large.

    The same observation is true of a newspaper. Whether the
    criticism is confined to a particular issue or deals with the
    way in which it is in general conducted, the subject-matter
    upon which criticism is made has been submitted to the
    public, though by no means all those to whom the alleged
    libel has been published will have seen or are likely to see
    the various issues. Accordingly, its contents and conduct
    are open to comment on the ground that the public have at
    least the opportunity of ascertaining for themselves the
    subject-matter upon which the comment is founded. I am
    assuming that the reference is to a known journal: for the
    present purpose it is not necessary to consider how far
    criticism without facts upon which to base it is subject to
    the same observation in the case of an obscure publication."

    All that was said in a context in which the words complained of
    were admitted to be pure comment, and the passage therefore has
    no application to the present case.

    There can be no doubt that where the words complained of
    are clearly to be recognised as comment, and the subject matter
    commented on is identified, then that subject matter must be
    looked at to determine whether the comment is fair. Kemsley v.
    Foot
    [1952] A.C. 345 is no authority for the view that the subject
    matter may be looked at for the purpose of turning what on the
    face of it is a statement of fact into a comment. The subject
    matter may, of course, be looked at for the purpose of
    ascertaining that the statement of fact is untrue. In Merivale v.
    Carson
    (1887) 20 Q.B.D. 275 a published criticism of a play made
    reference to one of the characters being "a naughty wife", though
    in fact there was no adulterous wife in the play. Bowen L.J. said,
    at p. 284:

    "Still there is another class of cases in which, as it seems
    to me, the writer would be travelling out of the region of
    fair criticism - I mean if he imputes to the author that he
    has written something which in fact he has not written.

    - 6 -

    That would be a misdescription of the work. There is all
    the difference in the world between saying that you
    disapprove of the character of a work, and that you think it
    has an evil tendency, and saying that a work treats adultery
    cavalierly, when in fact there is no adultery at all in the
    story. A jury would have a right to consider the latter
    beyond the limits of fair criticism."

    I conclude that Drake J. was wrong in failing to leave to
    the jury the question whether paragraphs 6 and 7 of the
    defendant's letter contained statements of fact.

    Drake J. also refused to leave to the jury the question
    whether, assuming that paragraphs 6 and 7 were pure comment,
    they constituted fair comment on a matter of public interest, and
    the Court of Appeal upheld his decision on this matter also. Both
    took the view that on an application of the normal objective test
    of fair comment any reasonable jury would be bound to hold that
    it was satisfied. Lloyd L.J. correctly stated the test as being
    whether any man, however prejudiced and obstinate, could honestly
    hold the view expressed by the defendant in his letter. I agree
    with Drake J. and the Court of Appeal as to the only reasonable
    outcome of a proper application of that test, and find it
    unnecessary to elaborate the matter. It was, however, argued by
    counsel for the plaintiff before the Court of Appeal and in your
    Lordships' House that in addition to satisfying the objective test a
    defendant pleading fair comment must prove affirmatively that the
    comment represented his own honest opinion, which the present
    defendant failed to do, since the case was withdrawn from the
    jury before any evidence had been given by him. Lloyd L.J., after
    an extensive review of the authorities, concluded that this
    argument was unsound. These authorities included Chernesky v.
    Armadale Publishers Ltd.
    (1978) 90 D.L.R. (3rd) 321, in the
    Supreme Court of Canada. The defendants were the editor and
    the owner and publisher of a newspaper which had published a
    letter to the editor in which the writers accused the plaintiff of
    holding racist views. The writers of the letter did not give
    evidence, but the defendants in their evidence made it clear that
    the letter complained of did not represent the honest expression of
    their own views. The trial judge refused to leave the defence of
    fair comment to the jury, and the Supreme Court, by a majority
    of six to three, held that he had acted rightly. Lloyd L.J.
    expressed himself as preferring the judgment of the minority to
    that of the majority, and as regarding the former as being fully
    supported by the English authorities cited in his extensive review.
    I find myself in respectful agreement with him and feel that to
    repeat his review would be a work of supererogation. The law is
    correctly stated in Gatley on Libel and Slander, 8th ed. (1981), p.
    348 para. 792, as follows:

    "Onus of proof of malice; fair comment. In the same way,
    the defendant who relies on a plea of fair comment does
    not have to show that the comment is an honest expression
    of his views. 'In alleging any unfairness the plaintiff takes
    on him or herself the onus, also taken by an allegation of
    malice, to prove that the criticism is unfair either from the
    language used or from some extraneous circumstance.'"

    - 7 -

    Finally, it was argued for the plaintiff that Drake J. was
    wrong to decide that there was no evidence of express malice fit
    to go before the jury, and that the Court of Appeal was wrong in
    upholding that decision. I am satisfied that the decision was
    correct, and find it unnecessary to go into any detail upon this
    matter.

    My Lords, for these reasons I would allow the appeal only
    on the issue as to whether it should have been left to the jury to
    determine whether paragraphs 6 and 7 of the defendant's letter
    constituted pure comment or whether they contained defamatory
    statements of fact. Since the argument dealt extensively with
    issues upon which the plaintiff has been unsuccessful, I would
    award him only one half of his costs before the Court of Appeal
    and your Lordships' House, but the whole of his costs of the
    proceedings before Drake J.

    LORD BRANDON OF OAKBROOK

    My Lords,

    For the reasons given in the speech delivered by my noble
    and learned friend, Lord Keith of Kinkel, I would allow the appeal
    to the extent proposed by him.

    LORD TEMPLEMAN

    My Lords,

    The plaintiff alleges that certain of the contents of the
    letter by the defendant set forth with numbered paragraphs in the
    speech of my noble and learned friend, Lord Keith of Kinkel, were
    defamatory, i.e. reflected on the reputation of the plaintiff and
    tended to lower him in the estimation of right-thinking members
    of society. If the contents of the letter were fair comment, then
    the plaintiff cannot complain notwithstanding that they were
    defamatory. If the contents of the letter included defamatory
    statements of fact, however, then the plaintiff will succeed in his
    action for defamation unless the statements of fact set out in the
    letter were true. If the contents -

    "... were a statement of fact, and the facts were untrue,
    a plea of fair comment would not avail and it is for the
    jury in a proper case to determine what is comment and
    what is fact, but a pre-requisite to their right is that the
    words are capable of being a statement of a fact or facts."
    (per Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures
    Ltd.
    [1950] 1 All E.R. 449, 461).

    In the present case the question, whether to be answered by judge
    or jury, is whether the letter alleged facts or made comments.
    Drake J. and Lloyd L.J. were of the opinion that all the contents
    of the letter were comments. Your Lordships (with the possible

    - 8 -

    exception of my noble and learned friend, Lord Ackner) share the
    opinion voiced by Lord Keith "that if the letter alone is looked at
    it would be open to a reasonable jury properly to find that the
    offending passages contain statements of fact." Glidewell and
    Woolf L.JJ. were of the same opinion but nevertheless concluded
    that all the contents were unarguably comment and not fact in the
    light of the plaintiff's article which inspired the defendant's letter.
    In my opinion, fact or comment depends on the true construction
    of the letter and not on the true construction of the article. If
    in the letter the defendant made allegations of fact, those
    allegations cannot be converted into comment by the article
    written by the plaintiff. This logical result is disputed on two
    grounds.

    First it, is said that the judge will have to direct the jury
    that they must refer to the article in deciding whether any
    comment was fair but that they must not refer to the article in
    deciding whether it was comment at all. My Lords, the first task
    of the jury, in any event, must be to decide on an examination of
    the letter whether the contents are, fact or comment. If and only
    if the contents are comment the jury must then consider whether
    those comments are fair.

    Secondly it is said that the defence of fair comment will be
    unduly restricted and freedom of the press inhibited if in deciding
    whether the defendant has alleged fact or has made comments the
    jury can only look at the defendant's statement which is claimed
    to be defamatory. In my opinion this argument blurs the
    distinction between the defence of fair comment and the defence
    of justification. It was argued that a newspaper could only
    protect itself against an action for defamation by confining
    criticism to passages actually set out in the criticism. I do not
    agree. Any critic, whether private or public, whether individual or
    press, must simply make clear that he is not quoting the plaintiff
    but is commenting on words which the plaintiff has uttered. In
    the present case it will be for the jury to decide whether the
    parts of the letter put words into the mouth of the plaintiff.

    For these reasons and in agreement with the views
    expressed by Lord Keith I agree with the orders which he has
    proposed.

    LORD ACKNER

    My Lords,

    Your Lordships are once more concerned with one of the
    fundamental freedoms - the freedom of speech. This appeal
    concerns the plea of fair comment - the right of the citizen
    honestly to express his genuine opinion on a subject of public
    interest, however wrong or exaggerated or prejudiced that opinion
    may be. There have been many judicial pronouncements on how
    vital to the functioning of a democratic society is the freedom to
    comment on matters of public interest. I content myself with
    citations from two cases.

    - 9 -

    In Lyon v. The Daily Telegraph Ltd. [1943] K.B. 746, a
    decision of the Court of Appeal to which I will have occasion
    again to refer, Scott L.J. said, at p. 752:


    "The reason why, once a plea of fair comment is
    established, there is no libel, is that it is in the public
    interest to have free discussion of matters of public
    interest."

    Towards the end of his judgment Scott L.J. added, at p.
    753:

    "It [the right of fair comment] is one of the fundamental
    rights of free speech and writing which are so dear to the
    British nation, and it is of vital importance to the rule of
    law on which we depend for our personal freedom that the
    courts should preserve the right of 'fair comment'
    undiminished and unimpaired."

    In Slim v. The Daily Telegraph Ltd. [1968] 2 Q.B. 157, 170
    Lord Denning M.R. said that:

    ". . . the right of fair comment is one of the essential
    elements which go to make up our freedom of speech. We
    must ever maintain this right intact. It must not be
    whittled down by legal refinements."

    In paragraph 151 of the Report of the Committee on Defamation
    (1975) (Cmnd. 5909) under the chairmanship of the late Faulks J.
    it is stated:

    "The very wide breadth of the main criterion for the
    defence of fair comment (could an honest albeit prejudiced
    person have expressed such an opinion) has stood for over a
    century. It is generally regarded as a bulwark of free
    speech."

    I entirely agree with the views expressed by my noble and learned
    friend Lord Keith of Kinkel supporting the decision of the Court
    of Appeal and the trial judge, Drake J., that there was no
    evidence of malice fit to go to the jury and that accordingly the
    plaintiff, the appellant before your Lordships, failed to discharge
    the burden of proof which lay upon him that the defendant, the
    respondent to this appeal, did not honestly hold the belief which
    he expressed in his letter to the Daily Telegraph and which was
    published on 18 February 1984. However, the fundamental question
    which remains is whether the words complained of in that letter
    were capable of being understood as a statement or statements of
    fact, since if they were, they were defamatory, there being no
    attempt to justify them. It is common ground that it is for the
    judge alone to decide whether the words complained of are capable
    of being a statement of a fact or facts and whether his ruling is
    right or wrong is a matter of law for the decision of an appellate
    tribunal. Drake J. decided that the words were not so capable
    and his decision was upheld by the Court of Appeal.

    It is not always easy to draw the distinction between an
    expression of an opinion and an assertion of fact. The very same
    words may be one or the other according to their context. This

    - 10 -

    point is cogently made in Winfield and Jolowicz on Tort 11th ed.,
    (1979), p. 304 where this example is provided:


    "To say that 'A is a disgrace to human nature' is an
    allegation of fact, but if the words were 'A murdered his
    father and is therefore a disgrace to human nature' the
    latter words are plainly a comment on the former."

    I do not take it to be disputed that whether the words complained
    of were reasonably capable of being understood as comment or a
    statement of fact must depend on a consideration of the whole of
    the words used, their context and the circumstances of publication.
    The vital issue in this case is - what is their context?

    The respondent's letter which was published in the Daily
    Telegraph had been stimulated by and indeed brought into
    existence as a result of the publication in that newspaper on 13
    February 1984, (some five days earlier than the publication of the
    respondent's letter) of an article written by the appellant entitled
    "Selecting the Right Wavelength to Tune into Russia". The
    appellant was then employed by the B.B.C. Russian Service as a
    probationer. The respondent was also employed at the relevant
    time by the same service in the B.B.C. He is a Russian Jew. He
    was much incensed by the appellant's article, which he regarded as
    racialist and anti-semitic. As Lloyd L.J. pointed out in his
    judgment [1991] 1 Q.B. 102, 105.106, the main thrust of the article
    was the importance of distinguishing between Russia on the one
    hand, and Communism on the other. Having traced the history of
    Russian broadcasting since the early 1970's the article continued:

    "But still, after three decades of gradually becoming aware
    of the significance of Russian language broadcasting I
    believe its general concept has never been set right. It
    continues to reflect the fatal confusion of the West, which
    has yet to clarify to itself whether it is threatened by
    Russia or by Communism. We fail to understand that
    Communism is as alien to the religious and national
    aspirations of the Russian people as those of any other
    nation."

    In the remaining paragraphs of the article the appellant then made
    quite a different point. These need to be set out in full.

    "This confusion further manifests itself in the policy of
    recruitment for the Russian Service. While other services
    are staffed almost exclusively from those who share the
    ethnic origin of the people to whom they broadcast, the
    Russian Service is recruited almost entirely from Russian-
    speaking national minorities of the Soviet empire and has
    something like 10 per cent. of those who associate
    themselves ethnically, spiritually or religiously with Russian
    people. However high the standards and integrity of that
    majority there is no more logic in this than having a Greek
    Service which is 90 per cent. recruited from the Greek-
    speaking Turkish community of Cyprus.

    "When broadcasting to other East European countries, we
    recognise them to be enslaved from outside and better able
    to withstand alien Russian Communism through our assertion

    - 11 -

    of their own national spirit and traditions. However, this
    approach leaves room for flirting with Euro-communism or
    'socialism with a human (non-Russian) face' as a desirable
    future alternative, and well suits the Left in the West.

    "Resisting the ideological advance of Communism by
    encouraging anti-Russian feelings is of less obvious value
    with a Russian audience. Making 'Russian' synonymous with
    'Communist' alienates the sympathetic Russian listeners. It
    stirs up social resentment in others against the Russians.
    Making those words synonymous also makes sympathy for
    Russia into support for the Communist system.

    "In America the Reagan Administration recently appointed a
    new Director to Radio Liberty, George Bailey, who
    introduced a concept in broadcasting which is to oppose
    Communism ideologically through Russian national spirit,
    tradition and, most important, appreciation of religious
    feelings. In other words, through relying upon and appealing
    to those basic values which constitute the health of any
    nation, indeed provide its only ideological immunity against
    the spread of Communism.

    "Predictably, Mr. Bailey very soon came under malicious
    attack from the Left and particularly those in the State
    Department who promote their own unfortunate brand of
    detente of the airwaves: 'If we stop telling the truth, they
    might stop telling lies.' Mr. Bailey's approach must be
    studied and followed by other broadcasting corporations not
    least of all our own external services of the B.B.C."

    The appellant by submitting his article for, and thus
    achieving its publication, exposed himself to and certainly, by
    implication, invited comment through the same medium. The
    invitation was accepted with indignation.

    I set out the respondent's letter of 18 February, for
    convenience sake, numbering each of the paragraphs.

    1. "Sir - Having read 'Selecting the Right Wavelength to Tune
      in to Russia' (Feb 13) I was shocked particularly by the part
      on alleged inadequacies of the B.B.C.'s Russian Service
      recruitment policies.

    2. "Mr. Vladimir Telnikoff says: 'While other services are
      staffed almost exclusively from those who share the ethnic
      origin of the people to whom they broadcast, the Russian
      Service is recruited almost entirely from Russian-speaking
      national minorities of the Soviet empire.

    3. "Mr. Telnikoff must certainly be aware that the majority of
      new emigres from Russia are people who grew up, studied
      and worked in Russia, who have Russian as their mother
      tongue and have only one culture - Russian.

    4. "People with Jewish blood in their veins were never allowed
      by the Soviet authorities to feel themselves equal with
      people of the same language, culture and way of life.
      Insulted and humiliated by this paranoic situation, desperate

    - 12 -

    victims of these Soviet racialist (anti-Semitic) policies took
    the opportunity to emigrate.

    1. "Now the B.B.C.'s Russian Service, as well as other similar
      services of other Western stations broadcasting to Russia,
      who are interested in new staff members (natives) employ
      those people in accordance with common democratic
      procedures interested in their professional qualifications and
      not in the blood of the applicants.

    2. "Mr. Telnikoff demands that in the interest of more
      effective broadcasts the management of the B.B.C.'s Russian
      Service should switch from professional testing to a blood
      test.

    3. "Mr. Telnikoff is stressing his racialist recipe by claiming
      that no matter how high the standards and integrity 'of
      ethnically alien' people Russian staff might be, they should
      be dismissed.

    4. "I am certain the Daily Telegraph would reject any article
      with similar suggestions of lack of racial purity of the
      writer in any normal section of the British media.

    5. "One could expect that the spreading of racialist views
      would be unacceptable in a British newspaper."

    One matter is crystal clear, that at the very outset of his
    letter the respondent identified, both by its title and by its date,
    the appellant's article. He stated in terms that he was shocked,
    particularly by that part of the appellant's article which alleged
    inadequacies in the B.B.C.'s Russian service recruitment policies
    and he quoted from the very first paragraph of the excerpt of the
    article which I have set out above. He then, to put the matter
    neutrally, gave vent to his feelings. Your Lordships are concerned
    with whether the words complained of were capable of being
    understood as statements of fact or facts rather than comment.
    If they were so capable then it is common ground it would have
    been the judge's duty to leave the question - fact or comment -
    to the jury.

    Let me first identify what are the words alleged to be
    statements of fact rather than statements of opinion or comment.
    Mr. Browne, for the appellant, relies upon paragraphs numbered 6
    and 7 of the letter, coupled with the final paragraph. In relation
    to paragraph 6, while conceding that the reference to "a blood
    test" was plainly not meant to be taken literally, he contended
    that the paragraph was capable of being construed as a factual
    statement that the appellant had demanded that the B.B.C. should
    vet employees before employment and reject those who were of
    Jewish blood, regardless of their abilities.

    As regards paragraph 7, he contended that the statement
    that the appellant claimed that no matter how high the standards
    and integrity "of ethnically alien" people Russian staff might be
    they should be dismissed, was capable of being construed as a
    factual statement.

    - 13 -

    As regards paragraph 9, Mr. Browne appeared to rely on the
    contents of this paragraph essentially as material for the jury's
    consideration as to whether the respondent could honestly have
    believed in the comments which he had expressed in his letter.
    To my mind this was the only possible use that could be made of
    this paragraph and I agree with your Lordships that it failed. This
    paragraph is giving the respondent's interpretation of the
    appellant's views, as expressed in his article, and is characterising
    them as being racialist. That is a statement, be it right or
    wrong, of the respondent's opinion.

    I now turn to the issue of public importance, which appears
    to have motivated the Court of Appeal to grant leave to appeal to
    your Lordships' House. Is the court entitled, in deciding whether
    the words complained of are comment or statements of fact, not
    only to look at the whole of the contents of the letter (this was
    not in dispute before your Lordships) but also the very article to
    which the letter refers. In short, is the article part of the
    context in which the letter is to be construed?

    It is accepted that in most cases it would be apparent from
    the publication itself whether the words complained of are
    comment or not. It is however accepted by Mr. Browne that in
    some cases it may be necessary to have regard to the wider
    context, for example to documents which are, as it were,
    incorporated in the publication by reference. This is accepted to
    be permissible when a question arises as to the meaning of the
    alleged libel (see Gatley on Libel and Slander, 8th ed. (1981), p. 55
    para. 102). Is it also permissible where the question is whether
    words complained of are statements of fact or comment? On this
    there is no authority direct in point.

    Mr. Browne repeated the submission which he had
    unsuccessfully made to the Court of Appeal. He contended that
    your Lordships are confined to the four corners of the letter. He
    conceded that the subject matter on which the respondent was
    commenting, namely the article, was sufficiently indicated in the
    letter. But the letter might, he said, have been read by someone
    who had no ready access to the article. Accordingly the question
    of construction, which he described as purely linguistic or
    grammatical, must be answered by reference to the letter alone.
    The article, the subject matter of the letter, must not be referred
    to.

    I share the view expressed in particular by Woolf L.J. in his
    judgment [1991] 1 Q.B. 102, 123, that if the court is not entitled
    to look at the material on which it is alleged that the words
    complained of were commenting, it would unduly restrict the
    defence of fair comment. Indeed, it would diminish and impair
    this vitally important right, by whittling it down by a wholly
    unjustified legal refinement. If the criticism of an article
    published in a newspaper on a subject matter of public importance
    is to be confined to passages actually set out in the criticism,
    then the freedom to comment on a matter of public importance
    becomes, from a practical point of view, illusory or non-existent.
    The ability of a defendant to comment should not depend on
    whether or not the reader is aware of the material which is the
    subject of the comment. As pointed out in terms by Woolf L.J.,
    the defence of fair comment is based on the principle that a

    - 14 -

    citizen should be entitled to comment on a matter of public
    interest and the fact that the publication is limited does not

    affect the public interest.

    In my judgment the defence of fair comment is not based
    on the proposition that every person who reads a criticism should
    be in a position to judge for himself. It would be absurd to
    suggest that a critic may not say what he thinks of a play
    performed only once, because the public cannot go and see it to
    judge for themselves. The defence of fair comment is available to
    a defendant who has done no more than express his honest opinion
    on publications put before the public. It is sufficient for him to
    have identified the publication on which he is commenting, without
    having set out such extracts therefrom as would enable his readers
    to judge for themselves whether they agreed with his opinion or
    not. Were the law otherwise it would be necessary or at the very
    least forensically expedient to set out, ipsissima verba, the entire
    contents of the article upon which as a matter of public
    importance the citizen is entitled to comment honestly. In the
    result the important contribution to public discussion on matters of
    public importance arising out of the publication in the press of
    correspondence would be seriously curtailed. Yet a free and
    general discussion of matters of public interest is fundamental to a
    democratic society.

    The views which I have stated above seem to me not only
    to be clearly right in principle, but appear also to reflect the
    views of your Lordships' House, as expressed in the case of
    Kemsley v. Foot [1952] A.C. 362. In that case an article
    criticising the conduct of the Beaverbrook press describe it as
    "lower than Kemsley". No details were contained in the article to
    substantiate the charge against Lord Kemsley. Nevertheless it was
    held that there was a sufficient substratum of fact indicated in
    the libel to justify the allegation being treated as comment. The
    subject matter which was implied was that the plaintiff was in
    control of newspapers and that the conduct of the publishers was
    in question. The defendant was entitled to say, per Lord Porter,
    at p. 357:

    "We have pointed to your Press. It is widely read. Your
    readers will, and the public generally can, know at what our
    criticism is directed. It is not bare comment; it is
    comment on a well known matter, much better known,
    indeed, that a newly printed book or a once-performed
    play."

    In the course of his speech Lord Porter said, at p. 355:

    "If an author writes a play or a book or a composer
    composes a musical work, he is submitting that work to the
    public and thereby inviting comment. Not all the public
    will see or read or hear it but the work is public in the
    same sense as a case in the Law Courts is said to be heard
    in public. In many cases it is not possible for everyone who
    is interested, to attend a trial, but insofar as there is room
    for them in the court, all are entitled to do so, and the
    subject matter upon which comment can be made is
    indicated to the world at large.

    - 15 -

    "The same observation is true of a newspaper. Whether the
    criticism is confined to a particular issue or deals with the
    matter in which it is in general conducted, the subject
    matter upon which criticism is made has been submitted to
    the public, though by no means all those to whom the
    alleged libel has been published will have seen or are likely
    to see the various issues. Accordingly, its contents and
    conduct are open to comment on the ground that the public
    have at least the opportunity of ascertaining for themselves
    the subject matter upon which the comment is founded. I
    am assuming that the reference is to a known journal: for
    the present purpose it is not necessary to consider how
    criticism without facts upon which to base it is subject to
    the same observation in the case of an obscure publication."

    As Lord Oaksey in his speech in the same case
    pointed out, at pp. 360-361:

    "The forms in which a comment on a matter of public
    importance may be framed are almost infinitely various and,
    in my opinion, it is unnecessary that all the facts on which
    the comment is based should be stated in the libel in order
    to admit the defence of fair comment. It is not, in my
    opinion, a matter of importance that the reader should be
    able to see exactly the grounds of the comment. It is
    sufficient if the subject which ex hypothesi is of public
    importance is sufficiently and not incorrectly or untruthfully
    stated."

    In Kemsley's case [1953] A.C. 345 it was ultimately
    admitted on behalf of the appellant that the facts necessary to
    justify comment might be implied from the terms of the impugned
    article:

    ". . . therefore the inquiry ceased to be - Can the
    defendant point to definite assertions of fact in the alleged
    libel upon which the comment is made? and becomes - Is
    there subject-matter indicated with sufficient clarity to
    justify comment being made? And was the comment
    actually made such as an honest, though prejudiced, man
    might make?" (Per Lord Porter, at p. 357).

    Quite apart from the principle of the matter, an important
    practical point is made by Lloyd L.J. in his judgment [1991] 1 Q.B.
    102, 110, and repeated by Glidewell L.J. in his judgment, at p.
    122. If the question - statement of fact or comment? - had
    fallen to be decided by the jury, the judge would have to direct
    the jury that they must refer to the article in deciding whether
    any comment was fair or not but if Mr. Browne's contention was
    correct, they must not refer to the article in deciding whether it
    was comment at all.

    If this be the law, then I echo the words of Russell L.J., in
    Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1
    W.L.R. S05, 825:

    ". . . the law of libel seems to have characteristics of such
    complication and subtlety that I wonder whether a jury on
    retiring can readily distinguish their heads from their heels."

    - 16 -

    Given that the judge was entitled, and indeed the jury would
    have been entitled to consider the whole of the article, I have no
    difficulty in agreeing with the Court of Appeal that the jury would
    have been bound to conclude that the matters of which complaint
    is made in the letter were, though perhaps expressed as if they
    were statements of fact, in reality comment on the contents of
    the article or part of it. In just the same way as it is accepted
    that the reference to "a blood test" (despite what appears in the
    particulars of the statement of claim) is not to be taken literally,
    the same is true of the appellant's alleged "demand" in paragraph
    6 of the letter. I agree with the Court of Appeal that any fair-
    minded man reading the letter as a whole in the light of the
    article would regard it as an inference drawn by the author from
    the first paragraph of the excerpt from the article which I have
    quoted, part of which was set out in the respondent's letter,
    together with the penultimate and final paragraphs of the article.
    The sense of the words is "Mr. Telnikoff in effect demands . . .".
    The same applies, mutatis mutandis, to the 7th paragraph.

    Accordingly I would have dismissed this appeal.

    LORD OLIVER OF AYLMERTON

    My Lords,

    I have had the advantage of reading the speech prepared by

    my noble and learned friend, Lord Keith of Kinkel. I agree with

    it and for the reasons which he gives I, too, would allow the
    appeal.

    - 17 -


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1991/16.html