[COURT OF APPEAL]

LYON AND ANOTHER v. THE DAILY TELEGRAPH, LIMITED.

Defamation - Libel - Fair comment - Letter published in newspaper - Fictitious name and address of writer.

A newspaper published in its correspondence columns a letter, which purported to give the name and address of the writer, commenting unfavourably on a broadcast entertainment conducted by the plaintiffs. The comment in its terms did not exceed the limits of fair and honest criticism but the letter contained matter found to be defamatory of the plaintiffs. No steps were taken by the newspaper to verify the name and address of the writer, and after the publication of the letter it was discovered that he had given a fictitious address and probably also a fictitious name. In an action of defamation brought by the plaintiffs against the proprietors, printers and publishers of the newspaper, the defendants pleaded fair comment:-

Held, that it was not necessary for the defendants in order to sustain the defence of fair comment to prove affirmatively that the writer of the letter honestly held the opinion expressed in it, that there is no duty on a newspaper to verify the name and address of a correspondent and therefore the fact that the writer had given a fictitious name and address was irrelevant and in no way prevented the defendants from relying on the defence of fair comment, which in the circumstances succeeded.

Quaere, whether even if it had been proved that the writer of the letter did not honestly entertain the opinion expressed in it, the defendants would have been precluded from relying on the defence of fair comment.

APPEAL from Hilbery J.

On March 5, 1942, the Daily Telegraph, which was then publishing, under the generic title of "Flabby Amusement," correspondence, critical or otherwise, relating to the entertainments which were being broadcast by the British Broadcasting Corporation, published a letter, which it had received from a person who signed himself "A. Winslow," and gave his address as "The Vicarage, Wallington Road, Winchester." This letter, referring to the radio entertainment "Hi Gang," which was broadcast every Sunday evening for several weeks, was in the following terms: "Sir, every Sunday evening at church time there is put on the air a costly broadcast which is an insult to British intelligence. The type of humour consists of a vulgar exchange of abuse. One comedian alludes to the other as 'that louse' and his chief humorous contribution is to say at intervals 'I'm laughing me blooming 'ead off.' The woman artist has a fair voice and sometimes sings a good song, but for the most part she indulges in vulgar wisecracks. We must be a nation of lunatics to permit such a waste of money for such a very sordid show." The plaintiffs, as two of the principal artists in the entertainment and largely responsible for its presentation and subject-matter, sued the proprietors, printers and publishers of the newspaper for damages for libel. They alleged in their statement of claim that the words in the letter meant, and were understood to mean, that the entertainment was of so offensive and degrading a character that a clergyman had felt constrained to pillory those responsible for its presentation and production and the artists taking part in it in one of the leading newspapers, and that the plaintiffs had, in consequence, been seriously injured in their character, credit, and reputation, and in the way of their profession, and had been brought into public scandal, odium and contempt. The defendants pleaded (inter alia) that the words complained of were fair comment and criticism, made in good faith and without malice towards the plaintiffs on a matter of public interest. After the publication of the letter it was ascertained that its writer had given a fictitious address, there being no Wallington Road in Winchester, and that no such name as "A. Winslow" appeared in Crockford's Clerical Directory. Hilbery J. held, not without considerable doubt, that the letter was defamatory of the plaintiffs as artists. As to the defence, the letter was certainly comment expressing an opinion which could be

honestly held and comment on a matter of public interest, but there was one statement of fact relied on which was not accurate, namely, that the entertainment was a "costly broadcast." Moreover, there was no evidence by the defendants that the opinion expressed in the letter was honestly held by its writer. On the other hand, the fact that the writer hid himself behind the cowardly device of a false name and address was some evidence that he was not wholly prompted by conscience. He, therefore, held that the defence of fair comment failed, and he awarded the plaintiffs 50s. each. The defendants appealed.

Serjeant Sullivan K.C. and Valentine Holmes for defendants. The finding of the learned judge cripples the whole defence of fair comment which has stood for so long. The fact that the name and address of the writer are fictitious, considered as evidence of malice, is irrelevant when only the newspaper, which takes responsibility for its own publication, is sued: see Hennessy v. Wright (No. 2) (1). Even if the statement of fact in the letter, that the broadcast was "costly," is inaccurate, it is not defamatory and is not a fact on which the alleged libellous comment was based. It is, therefore, not a ground on which the defendant can be denied his defence of fair comment. It is a well-established rule that a newspaper is under no obligation to disclose the names of its correspondents. [They were stopped.]

Slade K.C. for the plaintiffs. It is not suggested that, apart from the facts of this case, the words of the letter could not be fair comment, or that a man could not honestly take the view of this broadcast which the letter suggests. If it had been signed with a nom de plume such as "Pro bono publico" or "K.C.," the plaintiffs would have had no case. If it had been written by a person who was genuinely a clergyman it could not be contended that it was not fair comment, but, the signature being fictitious and the address false, what otherwise would be justifiable becomes unfair comment. The opinion expressed in the comment must be the opinion honestly held by the writer, whether he be a party to the action or not. To say that because the writer is not and cannot be sued it is immaterial whether or not the words express his honest opinion, is fantastic. The onus is on the plaintiffs to prove that the words complained of do not express

(1) (1888) 24 Q. B. D. 445 (n).

the honest opinion of the writer, and they, have discharged that onus by proving that no such person as "A. Winslow" exists, and that, therefore, there is no such person to express an honest opinion. It may be assumed that the writer was actuated by some indirect motive, and the onus is then on the defendants to prove that he honestly held the opinion expressed in the letter. They have not done so. The newspaper represented that there was such a person as the signature represented, who held the opinion expressed in the letter. That was not true and, therefore, the comment which the newspaper published is not fair comment in law. Two parties defamed the plaintiffs - the newspaper and the writer of the letter. They are co-tortfeasors, and if the writer is actuated by malice the plea of fair comment is lost to the newspaper, whether or not he is joined as a co-defendant. A comment cannot be fair which is based on facts that are not truly stated, and one of the statements of fact implicit in this libel is that it is the honest opinion of "A Winslow, The Vicarage, Wallington Road, Winchester." Alternatively, it is submitted that the newspaper was under a duty to verify the signature of the writer, and having failed to do so is guilty of negligence and loses its right to the plea of fair comment. [He referred to Thomas v. Bradbury, Agnew & Co., Ld. (1); Falcke v. Nerald & Weekly Times, Ld. (2); McQuire v. Western Morning News (3); Crozier v. Wishart Books, Ld. (4); Lyle-Samuel v. Odhams, Ld. (5); and Hunt v. Star Newspaper Co. (6).]

Serjeant Sullivan in reply. If a malicious libel is published by a newspaper at the request of the writer and the writer is sued, it is a malicious publication on the writer's behalf, but the court cannot try the issue of malice in another person who is not alleged to be the servant, agent or co-conspirator of the defendant, and who, not being sued, is not before the court. The author of a letter which is published in a newspaper is not a joint-tortfeasor with the newspaper. The newspaper is only responsible for its own publication, and, if it alone is sued, the case can only be proved by evidence against it, unless it had reason to know the malicious intention of the author.

(1) [1906] 2 K. B. 627, 638.

(2) [1925] V. L. R. 56.

(3) [1903] 2 K. B. 100.

(4) [1936] 1 K. B. 471.

(5) [1920] 1 K. B. 135, 143.

(6) [1908] 2 K. B. 309, 323, 324.

July 29. The following judgments were read.

SCOTT L.J. [after stating the facts and reading the letter complained of:] Hilbery J. came to the conclusion on the whole, "not without considerable doubt," that the publication was defamatory of the plaintiffs as artists, that is to say, not of them as man and woman in their private lives, but as "Ben Lyon" and "Bebe Daniels" in the "Hi Gang!" entertainment. He was further of opinion that the opinions expressed in the letter were such as an honest person might hold, and that, so far as the criticism itself was concerned, it was fair comment on a matter of public interest. On the other hand, there was one statement of fact in the letter, the phrase "costly broadcast," which he thought was inaccurate and gave "a barb" to the criticism that followed, and I gather he was of opinion that that inaccuracy of statement by itself put an end to the plea of fair comment. I do not agree with the learned judge on that point, for there is nothing defamatory of the plaintiff in saying the broadcast was costly, nor was there any evidence about cost, but there is another fact in the case which requires careful consideration, and, indeed, raises a new point in the law about fair comment. It appears that there was no person of the name of the signatory who could be traced, and there was no vicarage at the address on the letter. In other words, the letter was, in fact, not a signed letter and not merely anonymous, for the writer had concealed his identity by putting in a false address, even if he was really "A. Winslow." Of these last two points the newspaper was ignorant. On these facts the learned judge expressed the view that, in an action of libel against a newspaper in respect of the contents of a letter from a correspondent, the onus on the issue of fair comment lies on the defendant newspaper to prove affirmatively that the writer of the letter was merely expressing his honest opinion, and on this he found for the plaintiffs, holding, naturally enough, that there was no positive evidence in the case before him about the motive of the person who actually wrote the letter.

Before considering this conclusion, a little further explanation of the facts which led the learned judge to it is necessary. It was admitted or proved below that the letter came to the office of the Daily Telegraph bearing the address on the note-paper which was printed in the newspaper and also the name of the signatory as so printed. The good faith of the

editorial staff in printing it was not impugned. They had assumed the genuineness of both, though, apparently, they had not made inquiries themselves to verify either signature or address. In these circumstances the learned judge held that the defendants had failed to discharge the onus of proving that the writer of the letter (whoever he was) honestly held the views expressed in the letter. He further inferred that "the motive" of the anonymous writer "was not wholly prompted by conscience," and for that reason held that the plea of fair comment "broke down completely" and made it "an undefended action." He gave very small damages because the plaintiffs themselves had said that they did not bring the action for the sake of damages. The learned judge had thus two separate reasons for holding that the defendants' plea of fair comment failed. On the issue of cost I have already said that, in my opinion, the learned judge took an erroneous view. I think he was wrong both in fact and law. The entertainment, as is evident from the transcripts of the programmes, was obviously one which involved an outlay, considerable in itself, and, perhaps, more so relatively to the public interest in the matter broadcast. Anyhow, the comment that the entertainment was costly could not be regarded as defamatory of the actors in it. Even if it could, the criticism of the relative value of the broadcast in comparison with its cost to the nation was obviously mere comment on a matter of public interest and prima facie, as comment, quite fair. The other ground on which the learned judge relied is the only one which caused us to reserve judgment. It raises a matter of general importance. There is no question but that the comment contained in the letter represented the honest opinion of the Daily Telegraph, and at the trial no doubt was cast on the complete belief of the newspaper that they were publishing a letter in which the writer was making a fair comment on a matter of public interest. I cannot accept the submission implied in the argument of Mr. Slade before us, that there is a general rule of law making it the duty of every newspaper to verify the signature and address of the writer of a letter before publishing it, although it may be desirable on public grounds that, so far as is practicable, the newspaper should take such steps. In most cases writers unknown to the newspaper establish their identity by enclosing a visiting card or a private note to the editor, but to hold as a matter of law, that, where that has not been done, the absence of such

verification of itself destroys the newspaper's plea of fair comment would be to put on newspapers a heavy burden - a burden so deterrent in practice as very much to reduce the valuable contribution to public discussion which results from a free publication of correspondence in the Press. If the comment is in itself fair within the meaning of the law and if the newspaper publishes it solely as matter of public interest, I cannot see that any hardship is caused to the persons criticized if the newspaper is able to succeed on its plea of fair comment, whereas, if the rule laid down by the learned judge were made general, a very heavy burden of contingent liability would be put on the Press - a burden which on balance does seem to me undesirable from the public point of view and contrary to the principle of the existing law about fair comment. 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. In the case of criticism in matters of art, whether music, painting, literature, or drama, where the private character of a person criticized is not involved, the freer criticism is, the better it will be for the ¾sthetic welfare of the public.

There is no decided case which covers the precise point. It is unnecessary to consider how far the rule that the fairness of comment may be destroyed by any oblique motive extends where it is the defendant's own motives which are concerned, but, assuming that comment inspired By indirect, improper, or private motives ipso facto ceases to be fair and that the writer of such a letter to a newspaper will, when sued for libel, have put himself outside the pale of the defence of fair comment, it does not necessarily follow, as contended by Mr. Slade, that, if he is made co-defendant with the newspaper, the newspaper also will lose its defence of fair comment. Mr. Slade says they are just two joint tortfeasors and they must stand or fall together, but, even if he be right on that contention, it does not necessarily follow that the newspaper will lose its own defence if the writer is not made defendant. In the present case the writer of the letter was never discovered, and, therefore, was not sued. It seems to me contrary to common sense to say that the anonymous writer (who may have been absolutely single-minded in his comment) must in law be regarded for the purpose of that contention as if he had been co-defendant and his oblique motive had been exposed in the trial, with the consequence that the newspaper must lose

the protection of the defence. Although there is no direct authority, I think that the question of law is really implicit in the well-established rule that the publishers of a newspaper, when defendants in an action for libel, cannot, on the issue of fair comment, be required to disclose the source of their information. If the innocent state of mind of the writer of a letter published in the newspaper was a relevant fact which had to be proved by him before his plea of fair comment could be established, it would go far towards justifying Mr. Slade's argument, but the very existence of the exceptional rule about interrogatories and discovery in the case of newspaper defendants seems to me to pre-suppose a rule of law that at least in the absence of special circumstances (on the possibility of which I express no opinion), there is no such presumption or onus, and that fairness of the comment contained in the newspaper's correspondence columns must be judged by its tenor, subject only to the proviso that the statements of fact on which the comment is based are not untrue.

Mr. Slade put forward an alternative contention, namely, that, even if the defendant newspaper's right to rely on its plea of fair comment is not taken from it by the failure of the anonymous writer to come forward and plead his bona fides, yet the newspaper has lost its own right to that defence because it was guilty of negligence or carelessness in publishing the letter without inquiring into the identity of the writer. The answer to this is that fairness and carefulness are different moral and legal qualities, and that while malice or indirect motive may destroy the fairness of an apparently fair comment, negligence does not. I hold, accordingly, that the letter itself in no way exceeded the bounds of fair comment on a matter which was obviously one of public interest, and that on the facts in evidence there was nothing to destroy the defendant newspaper's plea of fair comment.

Before parting with the case, I wish to make one observation. The meaning of the plea of fair comment is well known to lawyers and to most newspaper and other publishers, but some people misunderstand the right of "fair comment." It 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. Some people evidently think

that in a case of libel or slander a judicial pronouncement that what the defendant wrote or said was within his right of fair comment means that the court accepts and endorses his opinions. That impression is, of course, wrong. The court may, as private individuals, agree or disagree with the opinions expressed. Indeed, it may disagree very much, and yet hold that there is nothing in the language used which exceeds the limits of public criticism so as to become mere personal defamation. The appeal is allowed, the judgment below set aside and judgment entered for the defendants, with costs here and below.

MACKINNON L.J. I agree that this appeal should succeed and judgment be entered for the defendants, with costs here and below. A clearer case of fair comment there can never have been, and I think the point made as to the non-existence of the supposed writer or the genuineness of his address was quite irrelevant. The action was against the defendant company, alleging that they had published a libel on the plaintiffs, and the defendants are entitled to say that what they published was not libellous since it was fair comment on a matter of public interest. Having been supplied with a copy of the script of the plaintiffs' performance which was subjected to the defendants' criticism, I am apprehensive that my own comment on it might exceed the bounds of judicial decorum. I, therefore, content myself by repeating the words with which Collins M.R. concluded his judgment in McQuire v. Western Morning News, Ld. (1): "We have had excerpts from the play .... read to us; and I think it right to say that in my opinion it would be matter of regret for all well wishers of the stage if an honest critic were debarred from commenting in the sense of this criticism upon such a production."

GODDARD L.J. The words complained of in this case are contained in a letter addressed to and published by the defendants in their newspaper and were a comment on a broadcast entertainment of the plaintiffs. It is not contended that the comment in its terms exceeds the limits of fair and honest criticism. It is, however, submitted, and the learned judge has held, that, as the writer of the letter gave a false name and address, the defendants are deprived of the defence

(1) [1903] 2 K. B. 100.

of fair comment. The address given is undoubtedly fictitious. Whether the name given by the writer is that by which he or she is commonly known there is no evidence at all. The plaintiffs seem to assume that because the address given in a letter is "The Vicarage" the writer must be the vicar of the parish. The letter might equally be that of the vicar's wife, daughter, son, or servant, or visitor. Let it, however, be assumed that "A. Winslow" is not the writer's proper name. In my opinion, that fact is quite immaterial. Anonymity is no evidence of malice. Dramatic and musical criticism in newspapers is usually contained in an unsigned article. Many people whose letters are published in the Press use some form of nom de plume, and had the letter been signed "Disgusted" or "Mother of Six," or with some equally foolish expression, Mr. Slade agrees that that would be no evidence of malice. Evidence may, no doubt, be given to show that a critic was actuated by malice, and then the court or a jury may find that his unfavourable criticism was inspired, not by an honest belief, but by a desire to gratify his malice, but they are not bound so to find. Here there was no evidence of malice and the criticism itself contains none, and so it is unnecessary to consider whether the newspaper would have been able to rely on the defence of fair comment if it had been found that the writer of the letter which they published was not honest, but was inspired by malice in writing what he did. As to the finding that there were misstatements of fact, I cannot follow the learned judge's view. The letter did refer to a costly entertainment. That is a matter of opinion and is not defamatory, and the criticism is not based on the cost but on the nature of the entertainment. To say that the chief humorous contribution was so and so, and that part of one of the plaintiffs' lines consisted of vulgar wisecracks, is obvious comment. I agree that the appeal should be allowed.

Solicitors for defendants: Alfred Cox & Son.

Solicitors for plaintiffs: Harold Kenwright & Cox.

A. W. G.