The need for there to be a public interest in play for the defence of honest comment to succeed is well established. But the question of how the position in the common law relates to the rights of the parties under the Human Rights Act has not been addressed. The issue was taken up in a judgment given by Tugendhat J on October 11 2010 in an action brought by Peter Andre against Katie Price ( EWHC 2572 (QB)). It was subject to a postponement of reporting order under section 4(2) of the Contempt of Court Act 1981 as a jury trial was due to take place and not published until the action was finally settled just before Christmas 2011.
The dispute between the celebrity couple, whose association has often been played out in the glare of media attention, arose in the acrimonious aftermath of the break-up of their marriage. The marriage itself had produced two children, and the Defendant had a son (‘H’) from a previous relationship, who needed medical treatment and specialist childcare.
The claim arose from two separate publications. The first was an interview given by the defendant to Heat Magazine in October 2009, in which she responded to a question about her former partner’s music as follows:
“The one song that I don’t think really represents very well is “Unconditional”, the one he did for H, because he chose only to see him two nights every two weeks and that is not unconditional love.”
The song in question was featured on the claimant’s album and was understood as detailing his feelings for ‘H’, including the words “Becoming a father before I became a Dad”. It was, as the quote suggests, based on the claimant’s sense that he had treated H as a son before he and the defendant had children themselves, information which was well known to those who followed the couple’s life together.
After the break-up, H continued to live with the defendant. Custody arrangements were complex, and it was agreed that H would spend alternate weekends with the claimant, provided suitable specialist childcare was in place.
The second publication was in the course of an appearance on The Graham Norton Show in the same month when, in the presence of a studio audience, but not during a broadcast, the Defendant alleged that the Claimant had cheated on her by having an affair with Claire Powell, who had managed both parties during their marriage. By the time of this application, the defendant had already publicly apologised to Miss Powell for this allegation and promised not to repeat it.
The main defence to the first publication was that of honest comment. The Judge noted that the idea that comment or opinion should always be a matter of public interest “has always been said to be an essential feature of the defence”. He referred to the speech of Lord Nicholls in Tse Wai Chun Paul v Albert Cheng  E.M.L.R. 31.
The defendant submitted that where such comment or opinion is not on a matter of public interest then the publisher cannot rely on the defence, the Judge observing that this means that the public interest requirement “is an interference with freedom of expression”. In written submissions, the defendant asserted that it would be an abuse of process if she could not rely on the defence of honest comment. The Judge said that, at common law, the question was simply one of whether the comments were on a matter of public interest or not, and that comments on the relationship between the claimant and his son, H, could not meet this requirement.
He went on to consider the effect of the Human Rights Act on the common law approach, stating that the following rights are to be considered by the judge in relation to a plea of honest comment: the claimant’s Article 8 right to reputation; the defendant’s Article 10 right to freedom of expression, and, under Article 8 to talk about her private life; the Article 8 rights of all involved; and the claimant’s and defendant’s rights of access to the court under Article 6.
The rights to a private life of the children involved were engaged, and they had not waived them. The Judge accepted the submission for the defendant that whether the words complained of are on a matter of public interest, and whether a public trial of those issues would be in the public interest were separate issues. Derogations from open justice could have secured the privacy rights of the children.
In the circumstances of the case, the major countervailing factors were the Article 8 right to reputation of the claimant and the Article 10 and perhaps Article 8 rights of the defendant. The defendant had been asked her opinion of the claimant’s music, something which “would normally be protected by honest comment as being a matter of public interest”. However, she chose to answer in terms of her view of the song as it related to the claimant’s relationship with H. The public nature of the claimant and his son’s relationship did not extend the right of criticism of the song on anyone’s part to personal criticism of the singer or writer. The Judge referred to the familiar ECHR jurisprudence which
“makes clear that celebrities, even ones as prominent as Princess Caroline, cannot be the subject of comments or other statements about their private life simply because they are celebrities.”
He concluded that the Article 10 rights of the defendant did not outweigh the Article 8 rights of the claimant, still less those of H, even where the facts were truly stated and the defendant’s opinion honestly held.
On the second incident, submissions were made on whether it came within the scope of business or professional libel as set out in Section 2 of the Defamation Act of 1952. The Judge decided that the allegation of adultery by the claimant with his manager, while married to the defendant, made to the studio audience of The Graham Norton Show, did not meet the measure of seriousness required to bring the case within the section and accordingly should not be left to the jury.
Firstly, the decision clarifies the status of the common law defence of honest comment in relation to the Human Rights Act, and the different rights which may be in play between the parties. Essentially, the situation remains the same under the Act as in the common law. For the purposes of the public interest element of the defence of fair comment, the right to a private life under Article 8 still applies to public figures. Although the defence may allow one to pass comment on the work of celebrities, it is not, it would seem, effective in relation to comments on their private lives.
While orthodox in legal terms, this seems surprising, particularly where, as here, the details of those lives are so intertwined with the celebrities’ work, and the publicity and resulting financial gain they achieve from deliberate exposure of those details in the media. While celebrities of the Price/Andre variety might be able to argue about the extent to which they seek exposure, given the involvement of agents, publicists and others in the process, others (such as a contemporary artist who explicitly featured their private life in their work) might not. Given the changing nature of celebrity and the reality-TV driven phenomenon of those who are ‘famous for being famous’, one can imagine arguments on the availability of the defence succeeding in relation to comments on celebrities’ private lives.
Secondly, a factor in the balance between rights here was the privacy rights of the couple’s children. The primacy given to these under the HRA adds a further dimension to the concept of the public interest in this type of case. The Judge here held that, even where the Claimant had waived his rights to privacy, the court may hypothetically have been bound
“to take of its own motion the point that the honest comment relied on was or was not in the public interest… in fulfilment of the court’s duty under the Human Rights Act s6(1) by which it is required to have regard to the private lives of the third parties involved, namely the children.”
However, and somewhat confusingly (the Judge acknowledges it is “a different point”), this application of the concept of the public interest seems to be one which would remove the defence, not make it available.
The defence of honest comment is one which looks set to be altered by this year’s Defamation Bill. Clause 4 of the Draft Bill renames the defence “honest opinion” but, notwithstanding the observation by Lord Phillips MR in Spiller & Anor v Joseph & Ors ( UKSC 53) that
“There may be a case for widening the scope of the defence of fair comment by removing the requirement that it must be on a matter of public interest”
the requirement is one that is to be codified in the new legislation (the words are at S4(3) of the Draft Bill). While the public interest test remains, the ability outlined here to align the potential operation of the defence with the balancing of the parties’ HRA rights will be a valuable one.
Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.