[QUEEN'S BENCH DIVISION.]

SILKIN v. BEAVERBROOK NEWSPAPERS LTD.

AND ANOTHER.

[1957 S. No. 1037.]

Libel and Slander - Fair comment - Test of fairness - Question of honesty.

Any person is entitled to say, by way of comment on a matter of public interest, what he honestly thinks, however exaggerated, obstinate or prejudiced that may be; such comment is fair and sustainable as a defence to a libel action, unless it is so strong that no fair-minded person could have made it honestly.

Test of Bray J. in Rex v. Russell (unreported, December 2, 1905, cited by Lord Hewart C.J. summing up in Stopes v. Sutherland, House of Lords Printed Cases 1924, at p. 375) applied.

JURY ACTION.

The plaintiff, Lord Silkin, a solicitor of the Supreme Court, and a Privy Councillor, who had until 1950 been a Labour Member of Parliament and a Cabinet Minister and since that date an active member of the House of Lords, brought an action against Beaverbrook Newspapers Ltd., printers and publishers of the Sunday Express, a weekly newspaper with an extensive circulation in the United Kingdom and throughout the world, and against John Junor, the editor of that newspaper, claiming damages for alleged libel contained in a paragraph in the issue of the Sunday Express dated December 16, 1956. The words complained of were as follows:

"Sugar for Silkin" "From these humble Tories I turn to a lordly Socialist. Forward the first Baron Silkin. Observe the return to Britain of the Heinkels - not in the skies but on the rolling roads. These economical little runabouts are selling briskly in the petrol famine. They are seen everywhere - even in New Palace Yard, Westminster, where M.P.s park their cars. What has this to do with Lord Silkin? Why, he is chairman of Noble Motors who market the Heinkels in Britain. And his son, former Socialist candidate, Mr. John Silkin, is a director. Oh the eloquence that solemn, portly Lord Silkin has churned out in the House of Lords against arming the Germans. He has said that part of his case is 'emotional.' 'I feel it is wrong that so soon after the events of the war we should join hands with them today for the purpose of combining our forces.' Of course, when Lord Silkin joins hands with the Germans now, he represses his emotion. It is just good solid business. From which no doubt he makes a fine profit."

By his statement of claim the plaintiff alleged that those words were defamatory and that they meant that he was an insincere and hypocritical person who was prepared to sacrifice his principles for selfish reasons of personal profit and that he was unfit to participate in the debates in the House of Lords.

The defendants denied that the words were defamatory. Alternatively, they pleaded that the words were fair comment made bona fide and without malice on a matter of public interest, namely, the attitude of a member of the House of Lords to Germany and the Germans. The particulars of the facts on which the words were claimed to be fair comment were as follows: (1) The plaintiff is the first Baron Silkin and is and was at all material times a member of the Labour Party. He is the father of one John Silkin, who was at one time a Labour Party candidate. (2) The German firm of the name of Heinkel was during the war with Germany between 1939 and 1945 the manufacturer of a bomber type of aircraft which took a prominent part in offensive operations against the British Isles. The firm of Heinkel has in recent years manufactured, among other things, a very small motor-vehicle which is extremely economical in its use of petrol. (3) In or about December, 1956, there was a threatened shortage

of petrol in the United Kingdom, and on December 17 a system of petrol rationing was introduced by Her Majesty's Government. In consequence there was a demand for motor-vehicles economical in their consumption of petrol and the aforementioned Heinkel vehicles were frequently to be seen in London and at New Palace Yard, Westminster, where Members of Parliament parked their cars. (4) At all material times the plaintiff was chairman of the board of directors and his son John was a director of Noble Motors Ltd., who were the Heinkel concessionaires in the United Kingdom, the United States of America and Canada for the Heinkel motor-vehicles in question. (5) On March 1, 1951, the plaintiff made a speech in the House of Lords opposing rearmament of Western Germany, and said among other things that

"there is also the moral question. After all, we know that on two occasions Germany has been guilty of aggressive war. We remember the brutalities, the horrors, the great massacres of millions of people. Are these the people with whom we want to conduct even a defensive war as allies? Does not the whole moral sense of the world revolt against our taking them into our hearts once more at the present time?"

(6) On March 24, 1954, the plaintiff made a speech in the House of Lords with reference to Western Germany in which he said:

"There is also the emotional side, and in some quarters those of us who take this view have been described as taking an emotional view. I make no apology for doing so and for the fact that at any rate part of my case ... is an emotional case. I feel it is wrong that so soon after the events of the war and the undoubted cruelty and oppression which we suffered and others suffered we should join hands with them for the purpose of combining our forces."

P. Colin Duncan and A. T. Hoolahan for the plaintiff.

Gerald Gardiner Q.C. and Helenus Milmo for the defendants.

The following cases were mentioned during the hearing of the action: Campbell v. Spottiswoode¹; Peter Walker & Son Ltd. v. Hodgson²; Hunt v. Star Newspaper³; Kemsley v. Foot⁴; McQuire v. Western Morning News⁵; Sutherland v. Stopes.⁶

DIPLOCK J. (in his summing-up): This is a comparatively simple case, but it is important, because we are here concerned with one of the fundamental freedoms - freedom of speech, the right to discuss and criticize the utterances and the actions of public men. Freedom of speech, like the other fundamental freedoms, is freedom under the law, and over the years the law has maintained a balance between, on the one hand, the right of the individual, like Lord Silkin, whether he is in public life or

1 (1863) 3 B. & S. 769.

2 [1909] 1 K.B. 239.

3 [1908] 2 K.B. 309; 24 T.L.R. 452.

4 [1952] A.C. 345; [1952] 1 T.L.R. 532; [1952] 1 All E.R. 501.

5 [1903] 2 K.B. 100; 19 T.L.R. 471.

6 [1925] A.C. 47; 41 T.L.R. 106.

not, to his unsullied reputation if he deserves it, and on the other hand, but equally important, the right of the public, which means you and me, and the newspaper editor and the man who, but for the present bus strike, would be on the Clapham omnibus, to express their views honestly and fearlessly on matters of public interest, even though that involves strong criticism of the conduct of public people.

I will spend a little time on the law in this matter, because it is important, not merely to the parties in this case, but to all of us.

Let us look a little more closely at the way in which the law balances the rights of the public man, on the one hand, and the rights of the public, on the other, in matters of freedom of speech. In the first place, every man, whether he is in public life or not, is entitled not to have lies told about him; and by that is meant that one is not entitled to make statements of fact about a person which are untrue and which redound to his discredit, that is to say, tend to lower him in the estimation of right-thinking men.

The first point, therefore, is that you should not misstate the material facts on which you are commenting. That is common sense and it is the common law. In a great many libel actions one of the matters which the jury have to consider is whether the facts are materially misstated. We shall have to look together at the article complained of a little later to see what are the facts on which the comment is said to be based, but you may think, having heard the evidence of Lord Silkin and the very able addresses of counsel, that it is not seriously contended that any of the facts set out in the article are misstated, unless you were to take the view that the last two or three sentences were statements of fact and not comment at all. The last two or three sentences are those, you remember, of which Lord Silkin primarily complains.

[His Lordship said that the second and very important requirement was that the subject of the comment should be a matter of public interest. In the present case the plaintiff's attitude to Germany and the Germans was a matter of public interest, not a mere matter of private interest, and his Lordship so directed the jury. He continued:] What are the limits of the right of comment? Quite rightly they are very wide. First of all, who is entitled to comment? The answer to that is "everyone." A newspaper reporter or a newspaper editor has exactly the same rights, neither more nor less, than every other citizen, and the test is no different whether the comment appears in a Sunday newspaper with an enormous circulation, or in a letter from a private person to a friend or, subject to some technical difficulties with which you need not be concerned, is said to an acquaintance in a train or in a public-house. So in deciding whether this was fair comment or not, you dismiss from your minds the fact that it was published in a newspaper, and you will not, I am sure, be influenced in any way by any prejudice you may have for or

against newspapers any more than you will be influenced in any way by any prejudice which you may have for or against Lord Silkin's politics. Those are matters which you will, I am sure, all of you, dismiss from your minds.

I have been referring, and counsel in their speeches to you have been referring, to fair comment, because that is the technical name which is given to this defence, or, as I should prefer to say, which is given to the right of every citizen to comment on matters of public interest. But the expression "fair comment" is a little misleading. It may give you the impression that you, the jury, have to decide whether you agree with the comment, whether you think it is fair. If that were the question you had to decide, you realize that the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate or prejudiced, provided - and this is the important thing - that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?

It is because honesty is the cardinal test that very often in cases of this kind you find it alleged that the person who made the comment was actuated by personal spite or by some other ulterior motive so that the comment he made did not express his honest opinion on a matter of public interest; but that is not alleged here. What is said here is that the comment in this article is so strong and of such a kind that it passes out of the domain of criticism and that no one could on these facts honestly hold the views as to Lord Silkin's conduct which are expressed in the article.

On what the true test is I think what I can best do is to repeat to you, adapting it to the facts of this case, a statement made by a judge some years ago when he said this¹:

"When you come to a question of fair comment you ought to be extremely liberal, and in a matter of this kind ..." - a matter relating in this case to views held about Germany and Germans - "you ought to be extremely liberal, because it is a matter on which men's minds are moved, in which people who do know, entertain very, very strong opinions, and if they use strong language every allowance should be made in their favour. They must believe what they say, but the question whether they honestly believe it is a question for you," the jury, "to say. If they do believe it, and they are within anything like reasonable

1 Bray J. in Rex v. Russell (unreported, Dec. 2, 1905, cited by Lord Hewart C.J. in Stopes v. Sutherland summing up, House of Lords Printed Cases, 1924, at p. 375).

bounds, they come within the meaning of fair comment. If comments were made which would appear to you to have been exaggerated, it does not follow that they are not perfectly honest comments."

That is the test, primarily one of honesty, not whether you yourselves agree with it. That is the test which you have to apply. I have dealt at some length with fair comment, because that is the real issue in this case, as counsel told you. You have, of course, first to decide whether the words are defamatory at all, that is to say, whether they tend to lower Lord Silkin's reputation in the estimation of right-thinking people; but you would probably have no difficulty in saying, if for example the facts about Lord Silkin's connexion with Heinkel cars were quite untrue, that the words would be defamatory, and I do not understand Mr. Gardiner to suggest the contrary; so that, in considering your verdict in this case, you will no doubt concentrate your minds primarily on the question of fair comment, with which I have already dealt, I am afraid, at some length.

Before I turn to the article, I think it is right that I should remind you of the facts on which the comment was based, because those are the facts which you have got to consider and then say to yourselves: could any man honestly hold the views and express the comment on those facts?

I remind you of the facts in this case. In the course of Lord Silkin's evidence there was a good deal of cross-examination devoted to exactly how much he made out of his venture in Noble Motors. The exact amount made, whether he made a large amount or a small amount, is not one of the facts commented upon and, even if you think, as perhaps you do, that his first answers in the box as to what he made were not particularly candid, dismiss that from your minds in deciding the question whether the comment was fair, because that is not one of the facts commented upon.

The facts which are commented on are these. [His Lordship read the facts relied on by the defendants and said that it was conceded that they were true. He continued:]

Those are the facts on which the defendants say they were commenting in the article, and those are the facts which you will bear in mind when you are asking yourselves the question in the terms in which I put it to you: not whether you agree with the comment made on those facts, but whether you think it is a comment which any man, be he prejudiced or obstinate, could honestly hold.

I turn now to the article. [His Lordship read the paragraph complained of, said that it was the concluding words

"Of course, when Lord Silkin joins hands with the Germans now, he represses his emotion. It is just good solid business. From which, no doubt, he makes a fine profit" on which the jury should concentrate, and continued:]

Lord Silkin has said, as indeed would be natural, that he went

into the business in the way he has described, the concession for the Heinkel cars, with the object ultimately of manufacturing them in this country, but he went into it - no one suggests it is wrong - as most people go into business, with the idea of making some money if he could.

I will just read the words complained of again. They have just quoted from the speech where he said

"I feel it is wrong that, so soon after the events of the war, ... we should join hands with them today for the purpose of combining our forces" and they go on: "Of course, when Lord Silkin joins hands with the Germans now, he represses his emotion. It is just good solid business. From which, no doubt, he makes a fine profit."

Those are the words of which Lord Silkin complains. You have to consider whether they are fair comment on what has gone before. It is not suggested that what had gone before were not true statements. Although it is a question for you, you will no doubt feel that those last sentences are comment on what has gone before. The matter which you have to decide, and I emphasize this again, because it is so important, is not whether you, any of you, agree with that comment. You may all of you disagree with it, feel that it is comment that is not correct. But that is not the test. I will remind you of the test once more. could a fair-minded man, holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view - could a fair-minded man have been capable of writing this? That is a totally different question from the question: Do you agree with what he said?

So in considering this case, members of the jury, do not apply the test of whether you agree with it. If juries did that, freedom of speech, the right of the crank to say what he likes, would go. Would a fair-minded man holding strong views, obstinate views, prejudiced views, have been capable of making this comment? If the answer to that is yes, then your verdict in this case should be a verdict for the defendants. Such a verdict does not mean that you agree with the comment. All it means is that you think that a man might honestly hold those views on those facts. But it is for you, the jury, not for me, the judge, to answer that question, and the answers which juries have given in cases of this kind to that question have formed the law which lies at the basis of freedom of speech in this country. That is why I said to you at the beginning that this case, though it is a comparatively short and simple case, is an important case, to which I am sure you will all give most conscientious thought when you retire from the jury box.

If you take the view that that test is fulfilled, that this does come within the limits of fair comment, then the proper verdict for you to bring in is a verdict for the defendants. If you were to take the view that it was so strong a comment that no fair-minded man could honestly have made it, then the defence fails and you would have to consider the question of damages. [His

Lordship added that damages, if any, should be not unreasonably high and not unreasonably small.]

Solicitors: Blacket Gill & Topham; Allen & Overy.

M. M. H.