(Decision of the Court of Appeal [1991] 1 Q.B. 102; [1990] 3 W.L.R. 725; [1990] 3 All E.R. 865 reversed in part.)

 

APPEAL from the Court of Appeal judgment dated 16 May 1990 of the Court of Appeal (Lloyd, Glidewell and Woolf L.JJ.) by the plaintiff, Vladimir Ivanovich Telnikoff, from the judgment and order dated 25 May 1989 of Drake J. dismissing the plaintiff’s action for damages for libel, there being no case to go to the jury on the grounds that (i) any reasonable jury properly directed would be bound to uphold the defence of fair comment; and (ii) there was no evidence of express malice to go to the jury.

 

COUNSEL:  Desmond Browne Q.C. for the plaintiff.

Browne Q.C. for the defendant

 

SOLICITORS: Peter Carter-Ruck and Partners; Bindman and Partners.

 

JUDGES:  Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner and Lord Oliver of Aylmerton  [*349]

 

14 November. LORD KEITH OF KINKEL. My Lords, this is an action for libel brought by one Russian émigré 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. 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  [*350]  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’ (13 February) 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 émigrés 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 paranoiac situation, desperate victims of these Soviet racialist (anti-Semitic) policies took the opportunity to emigrate.

 

5. “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.

 

6. “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.

 

7. “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.

 

8. “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.

 

9. “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 B.B.C. Russian Services, in order to maintain racial purity. (ii) Advocated the dismissal of employees of the B.B.C. Russian Service, on racial grounds. (iii) Had made statements inciting racial hatred and/or racial discrimination. (iv) Was a racialist and/or a  [*351]  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 retrial, 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 (Lloyd, Glidewell and Woolf L.JJ.) [1991] 1 Q.B. 102, 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 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 any 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., vol. 28 (1979), p. 114, 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 expressions 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.  [*352]

 

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. said [1991] 1 Q.B. 102, 111E, that the sense of the words in paragraph 6 was “Mr. Telnikoff in effectdemands . . .” 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.

 

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  [*353]  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 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  [*354]  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. 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  [*355]  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 Cherneskey v. Armadale Publishers Ltd. (1978) 90 D.L.R. (3d) 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:

 

“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.’”

 

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  [*356] 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 facts, 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 prerequisite 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 exception of my noble and learned friend, Lord Ackner) share the opinion voiced by Lord Keith, ante, p. 956F-G, “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.

 

Second, 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. [*357] 

 

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.

 

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. 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, at p. 39:

 

“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  [*358] 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 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 1970s 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  [*359]  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. 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 détente 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.

 

[His Lordship then set out the respondent’s letter, see ante, p. 350A-F, and continued:] 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. [*360] 

 

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.

 

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. [*361] 

 

I share the view expressed in particular by Woolf L.J. [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 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 Kemsley v. Foot [1952] A.C. 345. 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, than a newly printed book or a once-performed play.” [*362] 

 

“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 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 v. Foot 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  [*363] 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. 805, 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.”

 

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 paragraph 7.

 

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.

 

 

Appeal allowed in part.

 

Appellant to have one-half of his costs in House of Lords and in Court of Appeal and all of his costs in High Court.