(a) giving the words their natural and ordinary meaning?

(A)—Yes.

(b) in the sense that it imputed to her incompetence as a film critic and broadcast reviewer of films?

(A)—Definitely, yes.

(2) (Q)—Was the letter comment or statement of fact?

(A)—Statement of fact.

(3) (Q) In writing the letter were the defendants [respondents] actuated by malice?

(A)—Yes.

(4) (Q)—Did the defendants speak over the telephone to the witness Moynihan the contents of the letter complained of or the part of it which Moynihan said he took down?

(A)—Yes.

(5) (Q)—If the defendants did state the whole or part of the contents of the letter to Moynihan, did the words slander the plaintiff in the way of her profession of film critic?

(A)—Yes.

(6) (Q)—If the defendants read the letter over the telephone to Moynihan were they actuated by malice when they so read it?

(A)—Yes.

(7) (Q)—If you find for the plaintiff that the plaintiff was (a) libelled or (b) slandered, what damages for (a) libel or (b) slander?

(A)—£1,000 for libel,£500 for slander.

My Lords, as I have said, the majority of the Court of Appeal took the view that there was no evidence of malice, but a further question was argued both in the court of first instance, in the Court of Appeal, and before your Lordships, namely, that the words in question do not constitute a libel on the appellant in that, taken in their ordinary meaning, they are not defamatory nor are they capable of bearing the sense ascribed to them in the innuendo, viz, that they impute to her incompetence in her work as a critic. If they are incapable of the alleged or any defamatory meaning, the appellant must fail. If, however, any defamatory meaning can be found in them, a number of further questions require determination, the first and most important of which is whether there was any evidence of malice fit to be left for the consideration of the jury, and the second, whether the learned judge misdirected the jury on the question of malice. Besides these two main matters certain additional questions as to the claim for slander and as to damages might require discussion if the appellant were to succeed in her action. Both courts below held that the words did not bear the innuendo suggested. The learned judge so decided on the ground that the appellant, though completely out of touch with the tastes and entertainment requirements of the picture–going millions who are also radio listeners, might [*453] still be a perfectly competent critic, and, though highly skilled in the technique of the art which the critic was called on to deal with and having an acknowledged taste and a trained taste in that art, might still be out of touch with millions of people who flock to those theatres where that particular art was the attraction. Nor, in his view, did the words “unnecessarily harmful” reflect on her competence of a critic though they might otherwise be defamatory in their natural meaning. In the Court of Appeal Cohen LJ thought that “out of touch with” might either mean “ignorant of” or “out of contact with,” but in either event the words, in his view, were incapable of the innuendo alleged. “A critic,” he says, “may lack one qualification which he could usefully have, but it does not follow that he is incompetent,” and, accordingly, he agreed with the learned judge in the observations quoted above. I also agree with these observations, and, indeed, all the members of the Court of Appeal took the same view. It still, however, remains to be determined whether the words can bear a libellous meaning in their natural and ordinary sense. The learned judge left the questions quoted above to the jury before dealing with the submissions made on behalf of the respondents, viz:—(i) that the words were incapable of bearing any defamatory meaning; and (ii) that there was no evidence of malice fit for the consideration of the jury. When the submission was renewed after the jury’s verdict had been given he held that the earlier words were incapable of a defamatory meaning, but that the statement that the “criticisms are on the whole unnecessarily harmful” was defamatory because of the use of the word “unnecessarily.” Cohen LJ on the other hand, in the Court of Appeal appears to have formed the view that the words were capable of a libellous meaning as a result of the opinion which he, on an analysis of the meaning of the wording, entertained that “out of touch” might bear one of the two meanings set out above. If the first meaning were adopted, he thought that the words could not be defamatory. If the latter, they were, he held, capable of being defamatory of a film critic. “She is not bound to agree,” he says, “with the tastes of the millions, but it might be thought that she should know what these tastes are.” The other lords justices confined their observations to the question of malice or no malice, and do not seem to have dealt with the question of libel or no libel, except that Scott LJ on this issue does say—

“On the whole I come to the same conclusion as the learned judge, but I think it [the letter] only just over the boundary line and that, had there been no plea of qualified privilege, the justifiable figure for damages could not possibly be more than a small fraction of the figure of £1,000 awarded by the jury for the libel whether the innuendo was established or not.”

My Lords, having regard to the view I have formed on the question of malice, I do not think it necessary to come to a final determination on this matter. I would only say that I agree with the opinion of Scott LJ that the allegations in the letter, if libellous at all, are only just over the border–line, and I can, perhaps, best express my view by quoting from the words of Lord Esher MR in Nevill v Fine Arts and General Insurance Co where he says ([1895] 2 QB 168):

“It seems to me that the terms of that circular come as nearly as possible to being incapable of a defamatory meaning; but it is not necessary, I think, to go the length of deciding that they are so.”

One more observation I desire to make on this matter. The modern practice in actions of libel is for the judge to take the opinion of a jury first and after their verdict has been recorded to rule whether the words are capable of being defamatory. No doubt this course has great advantages in that it avoids the necessity of a second trial if the judge rules there is no case to go to the jury but the Court of Appeal take a different view. Nevertheless, in a case of any complication such as exists in the present instance, where there are at least [*454] two statements, either of which may or may not be libellous in the view of the tribunal which tries the case, the course adopted presents considerable difficulty. The case was left to a jury uninstructed whether either or both of the statements (i) that the appellant was out of touch with her listeners and (ii) that her talks were unnecessarily harmful, could be libellous or not, and it is impossible to say whether they relied for their verdict on one or both. Consequently, an appellate court is left in uncertainty as to what the grounds of their verdict were. It will later be necessary to consider whether there was any evidence of malice to go to the jury. Here, again, the same difficulty arises. Some ten or twelve matters were put before your Lordships’ House as being evidence of malice. So far as I am able to see, the learned judge gave little if any direction to the jury as to what they might regard as evidence of malice, and, consequently, it is impossible to say on what they relied to support their verdict. The court might think that some or one only of the circumstances relied on were evidence from which malice could be derived, but the jury may have relied, not on that or those matters, but on others which, in the view of the court, could not be evidence of malice. Whatever the advantage of the present practice may be, I cannot help feeling that it has grave disadvantages where more than one separate statement is said to constitute libel or where a number of disconnected circumstances, by which malice is said to be established, come in question.

Some argument was presented to your Lordships as to the attitude which the judge should adopt where, in his view, the only inference which can be drawn from the words complained of is that they lie on the border–line, and it is impossible to say whether, when properly considered, they are capable of a libellous meaning or not. It is, of course, the duty of a judge in the first instance to put an accurate interpretation on the words used, and, having done so, to make up his mind whether they are capable of a defamatory meaning or not. Theoretically, if he is left in doubt, he should rule them incapable of a defamatory meaning, but this, I think, is a theoretical and not a practical difficulty. It is the judge’s duty to make up his mind and, save in very exceptional cases, he can decide on which side of the line the words complained of are to be placed. If he comes to the conclusion that a reasonable jury would be justified in finding that they had a libellous tendency, he must leave it to them even though the words might also bear an innocent interpretation, or, to put it from the point of view of an appellate court, the question of libel or no libel should have been left to the jury if it cannot be said that twelve men could not reasonably have come to the conclusion that the words were defamatory. This, I think, is what Lord Blackburn means in his observations in Capital and Counties Bank v Henty when he says, quoting Brett LJ (7 App Cas 786):

“… it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document.”

It is in accordance with the test put by Lord Selborne LC when he says (ibid, 745):

“The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.&£148;

In the present case both the court of first instance and the Court of Appeal, though for different reasons, found the letter capable of a defamatory meaning, and I proceed to consider the second question whether there is any evidence of malice on the part of the respondents on this footing.

It is common ground, as I have indicated, that qualified privilege is rightly claimed by the respondents, but, it is said that any reliance on it is ruled out by the existence of express malice on their part. Where such an allegation is [*455] made it is the duty of the plaintiff to establish the existence of malice and, unless he does so, the defendant succeeds. If, however, the plaintiff can show any example of spite or indirect motive, whether before or after the publication, he would establish his case provided that the examples given are so connected with the state of mind of the defendant as to lead to the conclusion that he was malicious at the date when the libel was published. No doubt, the evidence must be more consistent with malice than with an honest mind, but this does not mean that all the evidence adduced of malice towards the plaintiff on the part of the defendant must be set against such evidence of a favourable attitude towards him as has been given and the question left to, or withdrawn from, the jury by ascertaining which way the scale is tipped when they are weighed in the balance one against the other. On the contrary, each piece of evidence must be regarded separately, and, even if there are a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. Nevertheless, each particular instance of alleged malice must be carefully analysed, and, if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances. Maule J, delivering the judgment of the court in Somerville v Hawkins and referring to the facts in that case, said (10 CB 590):

“… the fats proved are consistent with the presence of malice, as well as with its absence. But this is not sufficient to entitle the plaintiff to have the question of malice left to the jury … . It is certainly not necessary, in order to enable a plaintiff to have the question of malice submitted to the jury, that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non–existence of malice; but it is necessary that the evidence should raise a probability of malice, and be more consistent with its existence than with its non–existence.”

In the light of these observations I turn to the instances adduced from which it is said that a jury were entitled in the present case to find that the respondents were malicious. The circumstances relied on by the appellant for this purpose were conveniently tabulated by her counsel.

First, it is said that the words themselves are evidence of malice. It is true that grossly exaggerated language may be evidence of malice, but I find nothing gross or exaggerated in the words used in the letter complained of. Indeed, having regard to my views as to the extent to which they can be held defamatory at all, it would be difficult to do so. I can see nothing in them which a film manager and film producer might not genuinely believe. After all, the success of their films is of vital importance to them from what has been called the “box–office” point of view, and they might well feel that a seriously adverse criticism was unjustified. Secondly, it is said that the mere exclusion of the lady from the pre–views was itself evidence of malice. I do not follow this argument. Admittedly, the respondents were entitled to withhold their invitation. It is true that they had at an earlier time withheld an invitation from Miss Dilys Powell on the ground that they did not approve of her views, but I cannot see how the repetition of the exercise of a right can be evidence of malice, and, even accepting the view that the respondents were wrong in their attitude, their action is still no evidence of malice. Thirdly, it is said that malice can be inferred from the evidence given on behalf of the respondents at the trial by Mr Eckman, who was chairman and managing director of the respondent company, and by Mr McPherson. In criticism of their evidence it was said that they were not concerned with the mere protection of their company’s interests, nor entertained a general belief that the appellant’s criticisms were unjustified, but desired to stifle all adverse criticism and, if possible, to hound the appellant out of her position as film critic. Certain matters, which, in the evidence they [*456] gave, were relied on as justifying their statement that she was “out of touch” with the public and doing “unnecessary harm” to the industry, were said to be mere excuses and not honestly held. The first of these was their complaint of self–exhibitionism on the part of the appellant, and it is suggested that such a view could not genuinely be held. Obviously intimate criticism such as these talks contained is apt to call attention to the personality of the critic. Whether it calls undue attention is, in the end, a matter of opinion. The question is not whether it is a right opinion, but whether it is a genuine one, and in the present instance there is, I think, no ground for inferring that the respondents, as producers of films, did not genuinely feel that more space ought to be devoted to the film itself and less to the personal views and what they might regard as idiosyncrasies of the critic. I cannot derive evidence of malice from such an attitude. The expressions “flippancy” or “exhibitionism” or “selfadvertisement” which were also employed and the allegation that the appellant was more interested in “wisecracking” than in reviewing films appear to be used with the same general meaning, viz, that she was accustomed to utter clever witticisms rather than engage in a genuine exercise of the critical faculty. Examples may be found in her criticisms of “Bathing Beauty,” “Sally O’Rourke,” “To Have and Have Not” and “The Green Years.” I am prepared to assume, without affirming, that every word of those criticisms is justified, and I have not forgotten that serious criticism is to be found at the end of her talk on the first–named film, but the general treatment consists in poking a good deal of fun at each of those pictures, and I can well imagine the producers of a film thinking that such criticism was not only flippant, but failed to convey to filmgoers the substance of the film under review. Moreover, the witnesses are being asked for their genuine opinion—it matters not whether in examination in chief or in cross–examination. In either case they are obliged to express their real belief, be it hostile or not. The mere stating of it in these circumstances cannot of itself be evidence of malice, and I can find no ground for supposing it was not their genuine opinion. Nor is this view disposed of by putting forward a number of favourable reviews of the respondents’ works. The respondents are still entitled to complain of what they regard as a general air of flippancy though it be tempered with some more favourable and serious criticism. Again, when the witnesses for the respondents complained that the appellant was out of touch with the film–going public, it was suggested that they could not be expressing their genuine opinion of the general tone of her talks. To this charge Mr McPherson, when asked in cross–examination what he considered objectionable, mentioned, in addition to flippancy, the complete lack of relation in the talks to any knowledge of the kind of thing that the general cinemagoing public wants and gave three specific examples, viz, hatred of anything with “heart” in it, a prejudice against the introduction of religion, and a dislike of musical films.

I cannot find any evidence to suggest that he did not actually hold such an opinion. The charge is not that she was ignorant of that public’s wants, but that she disregarded those wants in her talks. So far as “heart” is concerned, it may be that the appellant regards, and, perhaps, rightly regards, much of the script of the films as full of false sentiment, and I am prepared to accept the contention that some of her talks showed deep and genuine feeling, but the question is not whether she is right or wrong, but whether Mr McPherson genuinely thought she disliked emotion. What he is complaining of is lack of sympathy with, and a failure to take account of, public taste, and the film–going public’s taste may differ from that of the critic, though it may be the critic’s duty to do what she can to improve it. He gives examples of films which some critics, and among them the appellant, have criticised harshly, but which, nevertheless, have been welcomed by the public. Whether or not these instances are to be regarded as establishing a want of heart in the abstract is irrelevant.

[*457] It is enough if the witnesses believed that they did, and I find nothing in their answers to indicate that they were dishonest in the view they expressed. Similar observations apply to his assertion that the appellant hated “musicals.” The witness again gave a number of examples, but, perhaps, it is enough to quote from a talk given on 1 October 1944, where, after praising “Greenwich Village” for its entertainment value, the appellant says that for a technicolour musical it has exceptionally little plot and adds:

“Rarely, if ever, am I more frantically bored than by the plot of the average musical when this is allowed to take up the time when dancers might have been dancing and the funny men ought to be funny.”

No doubt this is a criticism of the plot of musicals and not of their incidental qualities, but a witness is not to be accused of malice merely because he fails to distinguish between the two. With that and other examples in mind, I cannot see any evidence of malice in Mr McPherson’s attitude even though there are instances where the appellant has given some degree of praise to musical films which, as in the quotation given above, he regarded as somewhat contemptuous.

The third matter is the statement that the appellant was prejudiced against the introduction of any form of religion. Much stress was laid in argument on behalf of the appellant that Mr McPherson said in evidence that he could not support this allegation with a number of examples from her film talks and was thinking largely of her written criticisms in the “Daily Mail.” It was suggested in cross–examination that he had withdrawn this charge. In fact, he did not do so, but gave some instances from her talks which, in his view, supported his opinion though he said that his evidence had not been prepared in advance and he could have given better instances from her criticisms in the “Daily Mail,” which for some reason he thought himself precluded from adducing. Again, the evidence may have been less full, and the view may have been mistaken, but, in itself, it was not unnatural for an honest man to hold it and beyond the contention that no honest man could hold it there was no evidence of malice. I might sum up Mr McPherson’s attitude in his answer, when asked what he meant by saying the lady was “completely out of touch”:

“I meant that the great majority of the people who listen to her, the type of people who listen to broadcasting at 12?4350 p.m. on a Sunday, would disagree with her on a generality of her criticisms.”

I see no evidence in that answer of a malicious state of mind at the time of the alleged libel.

Next it was said that the motive in the mind of the respondents was to stifle criticism generally. The only evidence relied on to support this suggestion was the statement made in the box that they desired criticisms of the productions of other film companies besides their own to be more reasonable. It is difficult to see why such a complaint is justified. It might have force if they were not concerned at all with the result of the talks on the productions of other film companies, but criticism which deals adversely with a large number of films may well affect the whole trade and not only diminish the number of theatres in which films, including the respondents’ films, can be shown, but may be thought to lessen the numbers which frequent cinema theatres in general. Another circumstance from which it was suggested that malice could be deduced was to be found in the conflict of evidence between Mr McPherson and Mr Moynihan. Mr McPherson stated in the box that he had only given Mr Moynihan the gist of the letter of 27 September. Mr Moynihan, on the other hand, asserted that it had been read to him twice. From these facts it was suggested that the jury were entitled to consider that Mr McPherson must have been deliberately lying, and to find him malicious accordingly. I do not think this allegation is open to the appellant. In the first place, it was never suggested to Mr McPherson that he was telling a deliberate untruth. All that was put [*458] to him was that his memory was at fault. Moreover, what advantage he could have expected to gain or what his motive could have been is difficult to see. Once he admitted that he had repeated the gist of the letter, he had said enough to establish the appellant’s claim if she had a claim at all. Moreover, the very question put by the judge to the jury and answered by them indicates, as I think, that no distinction was made either between reading part of the letter and reading the whole, or between the gist and the exact words. A further proof of malice was sought to be derived from Mr Moynihan’s testimony that Mr McPherson described the appellant as “anti–film.” I do not remember Mr McPherson being asked in cross–examination whether he had in fact made this statement as he ought to have been if it was to be relied on. In any case it is a small matter and there is nothing to suggest that Mr McPherson did not genuinely believe it, more especially when it is remembered that the appellant said in one of her broadcasts: “When will Hollywood learn that to make everything larger, louder and lumpier than life is simply to diminish the effect,” and added in an interview that the refusal by the respondents to issue her a pass to the previews will save her from seeing some of the silliest of the American films. After all the respondents are makers of American films and might be expected to consider that such an attitude was anti–film. At any rate, the holding of this view is not evidence of malice even if it be assumed that a judge or jury or appellate court might think that her criticism had substance. As showing that Mr McPherson was malicious, reliance was also placed on the fact that, when giving evidence in support of his suggestion that the appellant hated “heart,” he quoted from her criticism of the film “Lermontov,” but omitted a portion of the words used. He read:

“Lermontov is a big Russian picture on the life of the nineteenth century Russian poet of that name. It has very considerable merits; here is no pondering anywhere to the lower standards of cinema taste—no fudging in of a love–affair.”

He omitted, however, to continue to the end of the sentence, which, after the words “no fudging in of a love–affair,” contained the further words “for which history gives no warrant.” When the omission was pointed out to the witness he at once apologised and admitted his mistake. Moreover, it must be remembered that the script of the talks was in the hands of the appellant’s counsel and of the judge. The witness in these circumstances could not hope to deceive the court and, in my opinion, no reasonable jury could draw the inference from the omission that he was displaying malice.

Some ground for imputing malice seems to have been sought in the fact that the respondents’ attitude was, perhaps wholly, or, at any rate, to some extent, influenced by what was called the “box–office” motive. No doubt, a critic should not be guided in her estimate of the merits of a film by its money–making capacity, but, however desirable it is to improve the public taste and not to pander to false art, a film producing and exhibiting company cannot disregard the question of finance, and it is no evidence of malice that their motive in withdrawing their invitations to the appellant and requesting the BBC not to employ her to review their films was influenced by their financial interests. As Lopes LJ said ([1895] 2 QB 171) in Nevill v Fine Arts & General Insurance Co with reference to the defendants’ secretary,

“… it seems to me that the true view of that evidence [i.e., that given in that case] is that it does not indicate any malice on the part of the secretary towards the plaintiff, not only a desire to preserve and protect the interests of his employers by keeping for them the business which he conceived to be theirs.”

I do not refer to that language on the ground that there is any analogy between the facts of that case and this, but because it recognises the right of defendants to protect their interests even when they are only pecuniary ones.

[*459] Further evidence of malice towards the appellant was said to be found in three documents emanating from the respondents. First, a draft letter written about 3 October for transmission to the “News Chronicle, 1946”; secondly, an internal memorandum dated 7 October; and thirdly, an article contributed by Mr McPherson to the “Cinematograph Weekly” of 26 September under the heading of the “The Lion’s Roar.” As regards the last–named, it was written before the letter complained of in this action, and is no more than a statement containing the same criticisms, not of the appellant, but of a coterie of critics who, apparently, took the same view as she did. Of course, if that publication could be shown to contain a dishonest attack on critics holding the same views as the appellant, it might furnish some evidence of malice, but the fact that Mr McPherson expressed the same opinion with regard to other publications on a previous occasion would only be evidence of malice if he did not believe in their truth and yet repeated them in writing to the BBC. In neither case do I think it shown that they were not his genuine opinions. The gravamen of the charge in respect of the letter and memorandum, the former of which was not sent, and the latter of which was merely an internal communication, is that the letter exaggerates the position by saying:

“If all the films, both British and American, vehemently condemned on the radio by Miss Robertson, had been boycotted by the public, and only those very rare specimens proposed by her had been patronised, the British film industry would have ceased to exist, because ninety–five per cent. of the cinemas would have had no pictures to show endorsed by her and, therefore, acceptable to the public … . Which is absurd; but not more absurd than to suggest that free speech includes the right of a critic to do, or try to do, grave harm to one of this country’s greatest industries.”

So far as the complaint is concerned with the suggestion that ninety–five per cent of the cinemas would have had no pictures to show, obviously the proportion is meant to be, and would be, taken to be a rough guess at the effect of her criticism, and is no more accurate than the appellant’s statement in her broadcast of 21 January 1946, when she says:

“This may not seem so welcome to you, but then you do not have to see so many films as I do, about ninety–five per cent. of which counting the world well lost for love.”

With regard to the expression “to do, or try to do, grave harm,” it is to be remembered that the letter was never sent, that Mr McPherson withdrew the words in the box when it was pointed out to him that they might be unfair, and at most, it seems to me to be but a scintilla of evidence of malice, and not such as should be left to a jury.

As to the internal memorandum, the evidence relied on is that contained in the paragraph reading:

“Nevertheless it seems intolerable that Mrs. Robertson and her cell of critics can say more or less what they like, without reply from us, and I wonder if it would give grounds for a writ to be put in to her quickly, if only to show that M–G–M mean business, and are not going to tolerate a campaign (a) to advertise Mrs. Robertson; (b) to prove that critics are themselves above criticism; (c) further to increase the power of the little group of people inside the Critics’ Circle, who are already trying to eliminate the ‘old–fashioned’ critic (who seeks to be fair even to entertainment films) and who habitually do the maximum amount of harm they can to the sort of pictures, whether British or American, likely to be popular with the general public.”

This is a private memorandum passed from one director of the respondents to another, suggesting a method of protecting themselves against what they might [*460] honestly consider to be unfair criticism, and complaining of harm done to pictures which, in their experience, the public liked, even though they were such as a coterie of critics might regard as bad art. Moreover, both these documents were written after the appellant’s interview had been reported in the “News Chronicle.” After all, critics are not exempt from criticism and if they attack the products of a business, whether rightly or wrongly, they must not complain if the proprietors seek means to protect themselves from their animadversions.

A further reason for the jury’s finding might, it was suggested, be in the demeanour of the witnesses at the trial. This is a dangerous line of argument. Except for two instances which, to my mind, are both neutral and unsubstantial, there is no indication in the evidence that the attitude of the respondents’ witnesses was deserving of any criticism. Some more solid ground is required on which to base the existence of a hostile demeanour. If it were not so, every finding of malice by a jury where the defendants called witnesses might be supported on the sole ground that those witnesses might have exhibited malice by their demeanour in the box. Some point was sought to be made of the allegation that the respondents’ witnesses had expressed one view of the appellant’s unfairness in the letter of 27 September and a different one in the box. My Lords, I do not read the letter and the evidence as containing anything contradictory the one of the other. The testimony, it is true, expands and amplifies the assertions in the letter, but says nothing which contradicts them. I know of no reason compelling a defendant to set out every ground on which he acted, nor is there anything to show that Mr McPherson was not speaking the truth in his reply to the question:

“(Q.)—Why did you not say to the B.B.C.: ‘We much regret to inform you that in our opinion Miss Arnot Robertson is abusing her position as a broadcaster and is self–advertising rather than giving favourable criticisms'?

(A.)—The main part of our objection to Miss Arnot Robertson as a broadcaster of film criticisms was that she was out of touch with public taste. That we honestly and quite frankly said in our letter to the B. B. C. Having done that it was not necessary for us to enter into any further details.”

Finally, some imputation of unfairness was put on Mr McPherson because he stated that the appellant, as she felt her feet, became more bitter and flippant and wisecracking, whereas it was suggested that the talks showed just the reverse behaviour. My Lords, in a matter so full of the possibility of divergent views and personal prejudices, it seems to me impossible to establish the existence of malice or to find any evidence of it from a comparison of the tone of one talk with another, or a consideration of the hostility shown or welcome afforded, from time to time, to the films criticised. The effect they produce and any appreciation of their quality is a matter dependent on the personal opinion of each individual hearer or reader, and I know of no standard by which it can be exactly measured. An opinion expressed in answer to questions put in the box as to the comparative merits or demerits or as to the exact amount of praise or blame of the films dealt with in the several broadcasts is, to my mind, too slender a source from which to derive an indication of malice.

These are, I believe, all the matters which were submitted to your Lordships as evidence of malice, and for the reasons I have given I find them both individually and collectively insufficient for the purpose. On the claim for libel, therefore, the appellant must, in my opinion, fail, but she can still rely on the claim for slander. This issue, however, is, in my opinion, disposed of by considerations which are the same as or similar to those applicable to libel. It is not disputed that the communication to Mr Moynihan was a matter of public interest and, therefore, a plea of fair comment can be relied on, but it is said on behalf of the appellant that the communication is neither comment nor fair. [*461] Of course, if the communication 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 coment and what is fact, but a pre–requisite to their right is that the words are capable of being a statement of a fact or facts. It is for the judge alone to decide whether they are so capable, and whether his ruling is right or wrong is a matter of law for the decision of an appellate tribunal.

I believe that all your Lordships agree with the Court of Appeal that the words are not statements of fact nor are they capable of being so considered. It is not only that the whole of the letter is prefaced with the words, “in our opinion,” but, to my mind, “out of touch” in its normal and natural signification means “out of sympathy with” and this interpretation is strengthened when one finds that it is the tastes and entertainment requirements with which the appellant is said to be out of touch. Moreover, so far as I have been able to ascertain from the record of the trial the contention that the words meant “ignorant of” was never put forward, and, indeed, only emerged in the judgment of Cohen LJ. I doubt, indeed, whether, even if the words could and should be construed as meaning “ignorant of,” the language, having regard to its preface and subject–matter, could be regarded as fact. In common with the rest of your Lordships, I think they express opinion only and, therefore, are comment. Here again, as in the case of malice, the question is not whether the comment is justified in the eyes of judge or jury, but whether it is the honest expression of the commentator’s real view and not mere abuse or invective under the guise of criticism: see McQuire v Western Morning News Co where Collins MR speaking of a case in which fair comment was pleaded, says ([1903] 2 KB 111):

“It is, however, for the plaintiff, who rests his claim upon a document which on his own statement purports to be a criticism of a matter of public interest, to show that it is a libel … and therefore it must be for the judge to say whether it is reasonably capable of being so interpreted. If it is not, there is no question for the jury, and it would be competent for him to give judgment for the defendant.”

To a similar effect were the words of Lord Esher MR (20 QBD 281), in Merivale v Carson which are so often quoted:

“… would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have [written] this criticism … ?”

I should adopt them except that I would substitute “honest” for “fair” lest some suggestion of reasonableness instead of honesty should be read in.

The only foundation in the present case for the assertion that the comment is unfair, lies in the suggestion that it does not represent the real view of the speaker, but was uttered with a dishonest object of injuring the appellant and driving her from the occupation of film critic. I have already dealt with this question in considering whether there is any evidence of malice which would defeat the qualified privilege enjoyed in respect of the letter. Having regard to the opinion there expressed, it is plain that I see no evidence from which unfairness could be derived. In alleging 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. In the present case there is no extraneous circumstance and the language itself does not warrant such a judgment. Nevertheless, the appellant maintains that in order to succeed the respondents must have obtained a verdict from the jury to the effect that the comment was fair, and they have not done so. I agree that, if the language itself warranted an inference of unfairness or if there were any other evidence from which a finding of unfairness could be derived, the matter must be left to the jury, but when, as here, if the matter had been left [*462] to the jury, an appellate court must have set aside their verdict, there is no material on which a finding hostile to the respondents could be based.

Once the questions of malice or no malice and fair or unfair comment are decided in favour of the respondents, the case is at an end. I, therefore, propose to say nothing on the question of damages, as affected either by the circumstance that the jury found their verdict before the question whether the words were capable of supporting the innuendo relied on had been decided, or by the fact that no reference was made in the summing–up to the fact that the appellant herself published the letter in “The Times.” The question whether the jury may have been misled by the summing–up and may have thought that the respondents must be fair–minded as well as honest has, however, been strenuously argued, and should, I think, receive some consideration from your Lordships’ House.

The task of a judge called on immediately after the conclusion of a trial to sum up to a jury is always a difficult one. As Bramwell LJ, pointed out ([1887] 3 QBD 243) in Clark v Molyneux:

“… a summing–up is not to be rigorously criticised; and it would not be right to set aside the verdict of a jury, because in the course of a long and elaborate summing–up the judge has used inaccurate language; the whole of the summing–up must be considered in order to determine whether it afforded a fair guide to the jury … ”

My Lords, in the course of his summing–up in the present case the learned judge undoubtedly in places used language which accurately states the law as I conceive it to be, and, indeed, as it is accepted to be by both parties, viz, that it is the honesty of the witnesses’ views, not their reasonableness, which decides whether they are malicious or not. I am not sure whether the learned judge always makes a clear distinction between words which go beyond the privilege which the occasion affords and those from which malice is to be inferred, neither am I sure that the authorities themselves are always careful to make such a distinction. Indeed, in the majority of cases it is not a matter of moment to do so, since the two considerations merge one into another, so that language which is alleged to go beyond the privilege claimed frequently justifies a finding of malice. I do not think, therefore, that any complaint can be made of the summing–up on this ground. Its early words on this part of the case express exactly what the authorities convey. “Fair comment” (in effect the learned judge says) “has to be an honest expression of the real opinion of the defendants when they wrote it … “ “Did they honestly and really think that she” (the appellant) “was completely out of touch with the tastes and entertainment requirements of the picture–going millions who are also radio listeners and that her criticisms are on the whole unnecessarily harmful to the film industry? Did they honestly hold that opinion and really believe it? If they did—then they were not abusing the occasion.” Such a direction is, I think, entirely accurate and could not be attacked, and similar language is to be found in other parts of the summing–up. On the other hand, language of this kind is frequently interspersed with words which suggest that the criterion is whether fair–minded men could hold that view. Let me take one example only. It runs:

“First of all … do you think that a fair–minded man capable of impartial judgment of the plaintiff’s [appellant's] talks … could come to that conclusion. Was there anything in them or in her conduct which would lead a fair man honestly to entertain the opinion that the defendants expressed in this letter?”

Similar observations appear throughout the summing–up and, undoubtedly, if they were found alone there would have been clear misdirection. It is said, however, in the first place, that, in his cross–examination and address, leading counsel for the respondents used the phrase and accepted the burden that [*463] fairmindedness was required. I do not think that the record justifies this allegation, but if it did I should think it immaterial. Secondly, it is argued with more force that, when the summing–up is regarded as a whole, a jury would not be misled, but would rightly apprehend that honesty, not reasonablenss, was the state of mind required. My Lords, I cannot take this view. I have read the summing–up as a whole more than once and I think a jury might well have come to the conclusion that both honesty and reasonableness were necessary and that the defendants were unreasonable and therefore malicious. It is, I think, difficult for the uninstructed mind to guard against such a misconception, and to my mind the clearest direction is necessary to the effect that irrationality, stupidity or obstinacy do not constitute malice, though in an extreme case they may be some evidence of it. The defendant, indeed, must honestly hold the opinion he expresses but no more is required of him. All the lords justices took this view of the summing–up and I agree with them. Therefore, had I come to the conclusion that the words were defamatory and the respondents malicious, I should still have thought with Cohen LJ, that it would be necessary to submit the issue to another jury. As it is, I think the appeal should be dismissed with costs.

LORD GREENE.

My Lords, the letter which the appellant asserts to be defamatory is variously described, by herself as a “flagrant commercial effort to stifle free, unbiased criticism”, and by her counsel as “a malicious attempt to destroy a critic.” Your Lordships will be neither assisted nor misled by such rhetorical misdescriptions. A criticism is a literary work which is itself a fair object of criticism, as much so as the work which it criticises, and a professional critic holds no privileged position in that respect. In the arguments presented to your Lordships a number of matters have been canvassed. I do not find it necessary to discuss more than two of them at any length. Either of these, if decided adversely to the appellant, is sufficient to dispose of this appeal. They are, first, the question of libel or no libel, and, secondly, the question whether there was evidence of malice proper to be submitted to the jury. I have formed the clear opinion that in both these respects the appeal fails and should be dismissed.

It is necessary to keep the essential factors in the case in their true perspective. The appellant is a professional critic specialising in criticisms of films. She held an engagement with the BBC under which she gave a series of critical talks on films of the week. Among the films which from time to time it fell to her to criticise in these talks were films produced by the respondents, and it was their practice to provide for her use free tickets of admission to their trade shows. The style and substance of her critical talks, particularly those which dealt with certain of the films produced by the respondents, caused them growing annoyance until at last they wrote the letter which has given rise to this litigation and is alleged to be defamatory. The reasons for the respondents’ annoyance, as stated in the letter and in the evidence of their witnesses, were numerous. I need only give two examples. One was that she would often discuss a film which she disliked without giving any such description of it as to enable the film–going public to decide for themselves whether it was worth seeing or not. The other was that she indulged in facetious remarks or “wisecracks” at the expense of films which she thought were bad. While not (so they claimed in evidence) objecting to adverse criticism as such, the respondents formed the opinion that the appellant’s style of criticism went beyond what adverse criticism required, and was unnecessarily harmful to the industry. That they honestly held these views, that for persons having occasion to criticise a critic, particularly if they happen to be producers engaged in a commercial venture, they were intelligible views, I see no reason whatever to doubt. There is scope for a wide latitude of opinion as to both the subject–matter and the style of a literary work, no less so where that work is itself a work of criticism than where it is an original [*464] work. When we move in the sphere of taste, opinion, aesthetic sense or whatever we may choose to call it, we may have our preferences, our likes and our dislikes, but, in the very nature of things, the free expression of them, untainted by misstatements of fact, can seldom be defamatory, and an amateur critic has as much freedom in that respect as a professional.

In the circumstances that I have described, the respondents took such steps as were available to them to protect themselves against a type of criticism, in the publication of which, they were not legally or morally bound to co–operate. Many of the appellant’s criticisms were unquestionably severe and often contemptuous. She frequently employed what is a common, and often the most destructive, weapon of a critic, namely, ridicule, and to certain subjects, such as that described as “heart” by the respondents, but treated by her as something no better than sentimentality, she obviously had a strong, and, maybe, commendable, objection which she did not hesitate to express. That her criticisms were legitimate expressions of a trained judgment, I cannot venture to doubt, but the respondents were just as much entitled to dislike them and to express their dislike as she was entitled to dislike and express her dislike of their films.

The letter of which complaint is made was addressed to the Director of Talks at the BBC. It has been read, but I make no apology for reading it again

“We regret to inform you that in our judgment, based upon a considerable number of talks given by Mrs. Arnot Robertson, that critic is completely out of touch with the tastes and entertainment requirements of the picture-going millions who are also radio listeners, and her criticisms are on the whole unnecessarily harmful to the film industry. In these circumstances we propose not to invite Mrs. Arnot Robertson to review Metro–Goldwyn–Mayer films in future; and we would ask your kind co–operation in restraining her from doing so in B.B.C. broadcasts.”

This letter falls into four parts. It contains two statements of opinion giving reasons for writing as they did, one statement of the respondents’ intention and one request to the addressee. I will deal with these in the first instance one by one, not forgetting that the question of libel or no libel is to be answered by a consideration of the letter as a whole when interpreted in connection with the relevant surrounding circumstances—a matter of which I shall say something later.

Neither the statement of intention nor the request, if the letter had contained nothing more, could, as it appears to me, have conveyed any defamatory signification whatever. The respondents had a perfect right to discontinue the grant to the appellant of facilities for giving criticisms of their films which they considered damaging to their interests, and to inform the BBC of their intentions in that behalf. They were also perfectly entitled (no question of procuring breach of contract being involved) to request the BBC, who were the employers of the appellant, not to continue to permit her to review their films. Whatever may be the meaning of the proposition of counsel for the appellant that “it is a social duty to submit to criticism,” there is certainly no legal duty on anyone to give free facilities to a critic who attacks him, nor is there any legal duty to abstain from requesting an employer not to allow such attacks to be made by his employee. What the BBC, in fact, thought of the request is shown by their action in refusing to comply with it. To interpret the announcement that facilities will be suspended, or the request to the BBC, as anything more than legitimate self–defence is, in my judgment, quite fantastic. The respondents, however, gave reasons to explain their actions, and these form the core of the appellant’s contention on this part of the case. The first reason given is that the appellant was, in the respondents’ judgment, “out of touch, etc”; the second is that, in their judgment, “her criticisms are on the whole unnecessarily harmful to the film industry.” Hilbery J, in his judgment, [*465] ruled that the words in which the first reason is expressed were incapable of bearing a defamatory meaning. He held, however, that the words of reason number two were capable of a defamatory meaning. No reference to this latter view appears in the judgment of any member of the Court of Appeal and I understand them as not agreeing with it since, as will presently appear, it is only in the first reason as interpreted by them that they find a possible defamatory meaning.

Following what is now the usual practice, Hilbery J, summed up to the jury and took their answers before he had heard the respondents’ argument whether the words complained of were capable of a defamatory meaning, either in their natural and ordinary sense, or in the sense of the innuendo alleged. Certain inconveniences which may flow from this practice are well exemplified in the present case. The following among others were the questions left by Hilbery J, to the jury and the jury’s answers:—

“(Q.)—(1) Was the letter in question a libel on the plaintiff—

(a) giving the words their natural and ordinary meaning?—

(A.)—Yes.

(b) in the sense that it imputed to her incompetence as a film critic and broadcast reviewer of films? [the sense pleaded in the innuendo]—

(A.)—Definitely, yes.”

After hearing the arguments of counsel, the learned judge in his judgment rightly said:

“As to the question whether the letter was capable of being a libel, I must divest my mind of the answers given by the jury, and put myself back into the position in which I should have been had the matter been submitted to me at the close of the plaintiff’s case.”

He held that the letter was not capable of conveying the only innuendo pleaded (ie, that of incompetence). This disposed of the jury’s answer to question (1) (b). In this I agree with him. He next considered the question whether the words in their natural and ordinary signification were capable of conveying a libellous meaning and he examined separately the two reasons given in the letter as above mentioned. Now, in his charge to the jury, he had not instructed them as to what the meaning of either of these two reasons, in their natural and ordinary signification, must be taken to be—a matter for him and not for the jury—but as he had not yet heard argument on that matter he could not very well have done so. Consequently, so far as any direction was concerned, the jury were left free to decide for themselves what that significance was, subject, of course, to the right of the respondents to argue at a later stage that in that significance (whatever it might be held to be) the words were incapable of bearing a defamatory meaning. Hilbery J, nowhere in terms states what the words “out of touch with”—and those are the words on which the controversy as to reason number one turns—mean in their natural and ordinary signification, but it seems to me perfectly clear what his opinion on that matter was. The question being: What is that signification?, a careful examination of the material to be found in the record and the appendix makes it abundantly clear, to my mind, that the only meaning put forward for these words by either party was “out of sympathy with.” That the learned judge in his judgment was interpreting them in this sense appears to me beyond question. After quoting the sentence in question he says:

“I am unable to see that that is a libellous reflection upon a critic in the way of her profession as a critic. She may be out of touch with the millions. I hope I shall not seem in any way to be saying anything which is offensive, but persons who are competent to be critics on matters like the arts will necessarily be, to some extent, upon Olympus, while the millions who go to the theatres will necessarily by upon the common earth. There will of [*466] necessity to some extent be a lack of contact between the two, and certainly they are not likely to share many tastes in common.”

These sentences and, in particular, the reference to “sharing tastes” make it clear, to my mind, that the judge was not merely interpreting the words as bearing the only natural and ordinary meaning which had been suggested by anyone, ie, “out of sympathy with,” but was interpreting the answer of the jury as given in reference to that meaning and that meaning only. When the words “out of touch” are read in that sense, they are, in my opinion, quite incapable of a defamatory meaning. Some people may think that it is desirable for a critic to be in sympathy with the millions, others may well think that it is not and that a good critic ought to disregard their tastes. Quot homines, tot sententiae, but to express the opinion that a particular critic is or is not out of sympathy with the millions cannot, in my view, possibly be defamatory. For the same reason, the suggestion made in argument that the words construed in the sense of “out of sympathy with” could support the innuendo of incompetence is even more unacceptable if, indeed, that be possible.

Here arises a curious point which has led to a great deal of discussion during the hearing before your Lordships. In the course of the argument before the Court of Appeal one of the lords justices threw out the suggestion that the words “out of touch with” might mean “ignorant of.” In his judgment Cohen LJ, accepted this suggestion and he regarded that possibility as being a sufficient ground for upholding the answers of the jury. Now this view as to “ignorant of” being a possible meaning for the words appears to me to involve the following assumptions:—(i) the words are capable of meaning “ignorant of”; (ii) on the footing that they do not mean “out of sympathy with” the jury must be assumed to have interpreted them in the only sense which would make their answer acceptable in law (the sense of “out of sympathy with” being ex hypothesi incapable of bearing a defamatory meaning) ie, “ignorant of”; (iii) interpreted in that sense, they are capable of a defamatory meaning; (iv) it is for the jury to decide whether words capable of bearing a defamatory meaning do, in fact, bear that meaning; (v) the answer of the jury to the question (1) (a) is, therefore, unassailable. On the assumptions made in propositions (i) and (ii), assumptions (iii), (iv) and (v) would, I imagine, follow, but, accepting for the moment the correctness of assumption (i), assumption (ii) appears to me to present insuperable difficulties. It was, in my opinion, a matter for the judge, not the jury, to decide whether the words “out of touch with” could in their context bear as their natural and ordinary meaning the sense of “ignorant of.” Subject to an argument on a point in the evidence with which I will deal later, no such meaning was submitted either to the jury or to the judge at any stage in the case. Before your Lordships it was argued that there were two “ordinary and natural” meanings of the phrase, and that the jury were entitled to choose and must have chosen that which they considered was defamatory, which happened to be the only meaning capable of bearing a defamatory signification. I see no ground whatever for assuming that the jury made any such choice. Not only did the learned judge not leave any such choice to the jury—and I will assume that in law he would have been entitled to do so—but it was never suggested that the words were capable of bearing any meaning except that of “out of sympathy with.” The questions which were framed for the jury were in the usual manner submitted to and approved by counsel for the parties. The form of question (1) (a) makes it, to my mind, impossible to suppose that what was being submitted to the jury was a phrase having more than the one “natural and ordinary meaning,” ie, the only one which throughout the trial has been put before them. I, therefore, construe the answer to question (1) (a), in so far as it refers to reason number one, as meaning that in its natural and ordinary meaning, viz, “out of sympathy with,” the letter was a libel on the appellant, but, as in that sense the reason is, in my opinion, incapable of being [*467] defamatory, the answer cannot stand so far as it is based on reason number one.

I must here mention the point of evidence to which I referred earlier. It was submitted on behalf of the appellant that the meaning “ignorant of” was in fact before the jury. What is relied on in support of this submission is an answer given by one of the respondents’ witnesses, Mr McPherson. When asked what, in his view, was objectionable about the criticisms of the appellant, he began a long answer with the following words:

“First and foremost they are intolerable flippancies—their complete unrelation to any knowledge of the kind of things that the general cinemagoing public wants, for example … ”

This, of course, is not an interpretation of the words of the letter, but, leaving that aside, the words of the witness cannot, in my view, be interpreted as imputing to the appellant a lack of knowledge of what the public wants. What the witness complains of is that the appellant’s criticisms were not, as he considered they should have been, related to such knowledge—a quite different thing. His view was clearly not that she had not the knowledge, but that she did not make use of it. If it had entered anybody’s head that this answer ought to be regarded as suggesting that the words in reason number one meant “ignorant of” in their natural and ordinary sense it is incredible to my mind either that the fact would not have been referred to at least in the judgment of the learned judge or that the question should have been framed as it was. Scott and Asquith LJJ, held that the appeal should be dismissed on the ground that there was no evidence of malice to go to the jury, but they agreed with Cohen LJ, that “ignorant of” was a possible meaning. No one of the learned lords justices appears to have considered the question whether the jury could properly be taken to have had any such meaning in its mind in view of the fact that no one had ever suggested it. The danger of the argument is obvious. If it were to be accepted it would mean that a jury could properly be left, without a word of guidance from the judge, to discover by itself some “natural and ordinary” meaning for the words which no one had ever suggested, leaving it to the appellate court to guess what that meaning was. Holding as I do the opinion that the jury’s answer cannot be interpreted as relating to any such alleged meaning, even if it be a possible meaning, it is not strictly necessary for me to express an opinion as to that possibility, but as it was argued I feel bound to state that, in my opinion, and with all respect to the learned lords justices, the words are not in their natural and ordinary meaning in their context capable of meaning “ignorant of.”

I now turn to the second of the two reasons given in the letter, viz, “and her criticisms are on the whole unnecessarily harmful to the film industry.” As to this the learned judge said in his judgment:

“I have finally come to the conclusion that the inclusion of these words makes it (i.e., the letter) capable of a defamatory meaning because these words in their natural and ordinary signification seem to me to say that she puts into her criticisms that which it is not at all necessary for them to contain as criticisms, and that she is making unnecessary statements in her criticism which are harmful. It seems to me that to allege that a person goes out of her way, when she has the position of a critic to do harm to the industry in which the subject–matters of her criticisms are displayed, and which sustains the performance of those matters which she is called upon to criticise is capable of being understood in a way which is libellous.”

With respect, I cannot agree with this. In the first place, the second reason, like the first, is a mere expression of opinion, although that, of course, does not necessarily mean that it is not capable of being libellous. It follows without a break the statement that she is “out of touch.” The two reasons when read together appear to me incapable of meaning more than that the method of [*468] criticism used by the appellant is, in the opinion of the writer, calculated to do more harm to the industry than is necessary for the purpose even of an adverse criticism. An adverse criticism is probably, and even necessarily, harmful to the proprietors of the films criticised. To say that a particular type of adverse criticism is in the opinion of the writer unnecessarily harmful can surely mean no more than that, eg, in order to express criticism, however adverse, it is not necessary to be, eg, facetious or to omit to tell the public what a critic sympathetic to the tastes of the public would tell them. The learned judge in his reasoning seems to me to have lost sight of the fact that opinions may differ widely as to what it is “necessary” for a criticism to contain in order to be a criticism. There is no measure by which such “necessity” can be judged, and, as it seems to me, an expression of the writer’s opinion on such a matter is a legitimate expression of opinion on what is a matter of taste and literary judgment, and nothing more. His opinion may well be, and can scarcely avoid being, coloured by his own tastes, prejudices or interests, but he is entitled to hold it. As I have said, I do not ignore the necessity of interpreting the letter as a whole for the purpose of deciding whether or not the language used is capable of being defamatory. This I have not failed to do, but the process, although in theory a perfectly proper and indeed an obligatory one, does not help me in this case. Nought plus nought still equals nought and no paraphrase of the words complained of must be allowed to obscure that fact. The interpretation put on the letter on behalf of the appellant was summed up by counsel in the following manner:

“The appellant is not fit to be invited to review our films. She is not fit to be put on to review films by you, the B.B.C. She knows nothing of the public taste and is guilty of sabotage.”

I hope that I shall not be considered wanting in respect if I say that it passes my comprehension how anything remotely approaching this can be extracted from the letter.

I now turn to the question whether there was any sufficient evidence of malice to be put to the jury. Here, again, the practice of taking the opinion of the jury before the arguments have been heard made it impossible for the judge adequately to instruct the jury or to rule for its guidance what it might and what it might not take into account. The result inevitably was that a mass of unsorted material was put to it for its consideration. In his judgment Hilbery J, did no more than state his opinion that there was evidence of malice to go to the jury. In the Court of Appeal, Cohen LJ, in his dissenting judgment, thought that there was such evidence in at least three matters:—(a) the allegations as to “self–exhibitionism” made by the respondents’ witnesses, McPherson and Eckman, in the witness box; (b) the answers given by Mr McPherson on the subject of the Russian film “Lermontov”; and (c) his answer that he could not support, by example, his allegation about the appellant’s aversion from the introduction of religion into films. Scott and Asquith LJJ, thought that there was no evidence of malice to go to the jury. Before your Lordships, counsel for the appellant relied on various matters in addition to those mentioned by Cohen LJ. Thus they argued that the opinions expressed as to the appellant’s broadcasts, both in the letter and by the respondents’ witnesses in the witness box, were so unreasonable that they could not have been honestly held and that their statements that they did hold them were, accordingly, false and, as such, evidence of malice. I feel bound to say that, in my judgment, the argument is quite inadmissible, and I do not propose to say more about it except that those opinions, however much one may disagree with them, are both legitimate and understandable. Another suggestion was that the jury may have found something in the demeanour of the respondents’ witnesses which led them to think that they were lying witnesses, and that this would have been evidence of malice. Here again I do not see how such an [*469] argument can be supported. There is no suggestion in the summing–up to the effect that there was anything in the demeanour of the witnesses which the jury might, or ought, to take into account in considering whether or not there was malice. As lying in the witness box is, or may, in appropriate cases, be evidence of malice, some reference to it ought to be made by a judge in summing–up if he considers that there has been anything in the demeanour of a witness on which a reasonable jury would be justified in concluding that he was telling lies. In the present case, the appellant endeavours to fall back on the view that the finding of malice by the jury ought to be supported on the basis that the jury may have disliked the demeanour of the witnesses, and come to the conclusion that they were telling lies. A more dangerous doctrine to be applied in a libel action I find it difficult to imagine. If it were accepted, it would be possible to argue that a finding of malice could always be successfully supported on the ground that, although there was no substantive evidence to go to the jury, the jury may have thought that the defendant’s witnesses were lying in the witness box. In any case the grounds on which it was suggested (and in this I include the “Lermontov” matter referred to by Cohen LJ), that the jury might have formed the opinion that the respondents’ witnesses were telling deliberate untruths were, in my judgment, so tenuous as to be incapable of supporting any such conclusion. The repetition of the letter, or its substance, on the telephone was strongly relied on as being evidence of malice. In my opinion, having regard to the circumstances, it is quite impossible so to regard it. As to the two items of evidence, other than the “Lermontov” answers, which Cohen LJ, thought were proper to be submitted to the jury, I am unable to see how the description of the appellant’s style as amounting to “self–exhibitionism” can be regarded as evidence of malice. It was nothing but an expression of opinion, exaggerated, perhaps, and founded on what, I venture to think, runs right through the evidence of the respondents’ witnesses, viz, a complete misunderstanding of what criticism means, of what forms it may take, and of what language it may use in order to express most effectively the critical judgment which the critic desires to put before his readers or hearers. Thus, they were unable to understand that a witticism is as permissible as a pedestrian, and, perhaps, dull, examination of the subject–matter of the criticism. What they regarded as “self–exhibitionism” appears to me to be no more than the sort of conversational style which may well be appropriate to the comparatively new technique of broadcasting. The fact that they used the word “self–exhibitionism” may indicate a lack of linguistic sense, but how it can be evidence of malice, with all respect to Cohen LJ, I fail to see. The suggestion of Cohen LJ, that Mr McPherson’s answer “that he could not support, by example, his allegations about the plaintiff’s aversion to the introduction of religion into films” with respect appears to me to be based on a misreading of the evidence. Mr McPherson’s first answer, when asked by counsel for the appellant in cross–examination to deal with the allegations, was:

“Yes, I should like to say that I cannot support this with a number of examples and to say in defence, if I may, that I was perhaps wrongly thinking largely of Miss Robertson’s written criticisms in the ‘Daily Mail’ which of course I am not allowed to introduce here.”

Why the witness thought that he was “not allowed” does not appear. A paragraph from his evidence–in–chief was read to him, ending with the statement:

“She also had a particular prejudice against the introduction of any form of religion into a film.”

Counsel for the appellant then asked him,

“(Q.)—And you now say there was no justification for that–is that right?

(A.)—I have said nothing of the sort, sir, nothing whatever of the kind– [*470] and I repeat that evidence was not prepared in advance. I had no idea that I was going to be asked that question by Sir Patrick Hastings.

(Q.)—So now you want to withdraw?

(A.)—I do not withdraw it. I am quite prepared to give you examples from these film criticisms, but I could give you better examples from her written criticisms.”

The witness, having twice refused to accept the suggestions of counsel for the appellant that he meant something which he had not said, was then asked to give examples from the appellant’s broadcasts. He proceeded to give three, after which counsel did not pursue the point. I cannot agree that this evidence, rightly understood, could properly be regarded as evidence of malice. The statement of the witness appears to me to have been nothing but a perfectly bona fide expression of an opinion legitimately held by him. I have dealt with the principal matters relied on as being evidence of malice. I do not propose to deal in detail with any of the others that are relied on as they appear to me to have even less substance than those which I have discussed.

I will add a few words on the subject of the alleged slander. It is argued that the question of fair comment was not put to the jury in terms. This, however, in my opinion, does not prevent the defence succeeding. The letter was clearly comment, and the finding of the jury that it was fact cannot stand. There only remains the question of “fairness.” On the facts, the allegation of fairness was bound to succeed once the charge of malice was decided in favour of the respondents. That charge being negatived, it would not, in my opinion, have been open to the jury to find that the allegation of “fairness” had not been proved. That this was the position accepted by everyone at the trial is I think manifest from the form of the questions put in which no suggestion of unfairness appears save such as might result from a finding of malice. I would dismiss the appeal.

LORD NORMAND.

My Lords, It is unnecessary for me to detain your Lordships by delivering an opinion of my own, because I agree in all respects with my noble and learned friend Lord Greene on the question of libel or no libel, and with my noble and learned friend on the Woolsack on the other questions dealt with in his opinion.

LORD OAKSAY.

My Lords, I agree that this appeal should be dismissed. The main question argued was whether there was any evidence of malice fit to be submitted to the jury, that is to say: Did the appellant prove that it was more probable than not that the respondents were actuated by malice? That it was a privileged occasion was conceded by the appellant at the trial, and the privilege is founded not on any duty resting on the respondents, but on the fact that the words were written by the respondents “… in the conduct of [their] own affairs, in matters where [their] interest is concerned” to use the words of Parke, B (1 Cr M & R 193), in Toogood v Spyring and “in such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications … “ What, then, was the interest of the respondents which they were concerned to protect? Clearly, as their witnesses said, it was to protect themselves against the appellant’s criticisms on the BBC wireless. There was nothing indirect in that interest or motive. It was direct and acknowledged, and yet the very interest which made the occasion privileged, which, as Parke, B, said, prevents the inference of malice, is said to be evidence of malice.

There is, it seems to me, an analogy between the criminal law of self defence and a man’s right to defend himself against written or verbal attacks. In both cases he is entitled, if he can, to defend himself effectively, and he only loses the protection of the law if he goes beyond defence and proceeds to offence. That is to say, the circumstances in which he defends himself, either by acts or [*471] by words, negative the malice which the law draws from violent acts or defamatory words. If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensberry rules in your defence. The “Lion’s Roar” was probably not as far–reaching as the appellant’s voice on the BBC wireless, nor could the respondents, so far as the evidence shows, command so pointed a pen as that of the appellant. They had, therefore, to adopt other means of defence, but provided that they were means of defence and not of offence or attack, they are not evidence of malice, but merely the adoption of the most effective method of defence available: (cf, the cases cited in Gatley On Libel And Slander, 3rd ed, pp 290–299).

It appears to have been conceded at the trial, and, in my opinion, it is clear, that the respondents were entitled to refuse to have the appellant at their previews, and were entitled to ask the BBC not to allow her to broadcast on their films, but it was and is said that, in giving the BBC two reasons why they objected to her broadcasts, they showed evidence of actual malice, and that the conduct and evidence of their witnesses at the trial, ten months later, were further evidence of malice. In the alleged libel the respondents wrote that in their judgment the appellant was completely out of touch with the tastes and entertainment requirements of the picture–going millions and that her criticisms were unnecessarily harmful to the film industry. In order to achieve one of their avowed objects, namely, to induce the BBC to prevent the appellant broadcasting on the respondents’ films, it was probably necessary for the respondents to give some reasons for their request, and I am entirely unable to understand the contention that no fair–minded man could take the view either that the appellant was out of sympathy with the picture–going public or that her criticisms were unnecessarily harmful to the industry. It was proved at the trial that films on which the appellant in her broadcast poured ridicule and contempt had earned very large profits for their producers and it seems to me that a film producer would naturally consider that such success is the best, if not the only, test of the taste of “the picture–going millions.” Cinema producers are not educationalists. They are business men who invest enormous sums of money in the production of films, and unless their productions draw the public they will very soon be out of business. They are concerned primarily with business and not with the education of public taste. As to criticism being harmful or beneficial to the film industry it is a question on which different views may obviously be held. Criticism may be harmful or helpful. It may be necessarily harmful for a time, but do good afterwards. Equally, it may be so harmful as to stop the industry altogether, which even persons of the most exacting taste would probably acknowledge to have been unnecessary in the year 1946. In my opinion, therefore, no inference of malice can be drawn from the words used in the letter.

It is said, however, that the evidence and demeanour of the respondents’ witnesses at the trial ten months later are evidence of malice. They complained that the appellant was a “self–exhibitionist” in her criticisms, that she was flippant and did not describe the subject of the films, that she loathed “heart” in films, and disliked musicals and the introduction of religion. The appellant’s counsel also relied as evidence of malice (i) on a quotation made by Mr McPherson of the appellant’s broadcast on the film “Lermontov”; (ii) on the “Lion’s Roar,” an article written by Mr McPherson in the “Cinematograph Weekly” dated 26 September 1946; (iii) on the draft letter composed by Mr McPherson and an internal memorandum from the respondents’ office dated 7 October 1946; (iv) the fact that, whereas Mr Moynihan, a newspaper reporter, called for the appellant, said that Mr McPherson had read the alleged libel over twice to him on 2 October 1946, Mr McPherson [*472] said he did not read the letter, but gave the substance of what had happened; (v) the alleged fact that Mr McPherson was not telling the truth in that he might have been disbelieved by the jury and may have known that the appellant had pleaded that the whole letter was read over to Mr Moynihan; (vi) the evidence of Mr Moynihan that Mr McPherson said the appellant was “anti–film,” and (vii) the demeanour of the respondents’ witnesses. In my opinion, there is abundant evidence from the broadcasts themselves to show that the statements of the respondents’ witnesses about them were not irrational and might have been honestly made. Mr McPherson’s evidence on the “Lermontov” broadcast was perfectly consistent with his honesty, and the words omitted by him were really irrelevant to the point he was making. The “Lion’s Roar” was a fair presentation of the respondents’ point of view about the sort of criticism in which the appellant indulged. The draft letter and the internal memorandum were not published, and Mr McPherson withdrew in the box the words in the latter document “or try to do grave harm.” Moreover, it may be that the letter was not published because Mr Eckman or Mr McPherson disapproved of it. As to the Moynihan conversation on the telephone, it was not suggested to Mr McPherson, that he was not telling the truth, and in such circumstances it is, in my opinion, not open to counsel for the appellant to argue before a Court of Appeal that he was not to be believed and, therefore, malicious. As to the evidence that Mr McPherson used the word “anti–film” about the appellant, such an expression might, I think, honestly be used by the respondents, and could not in any event be considered in all the circumstances as more than a scintilla of evidence. The learned judge made no criticism of the respondents’ witnesses either as to their credibility or their demeanour. It is, therefore, impossible for a Court of Appeal to speculate on such a subject. For these reasons I am of opinion that the issue of malice ought to have been withdrawn from the jury and judgment entered for the respondents on the alleged libel.

As to fair comment, I am of opinion that the words repeated from the letter were comment and not statements of fact, and that they were fair in the circumstances. It was the appellant and not the respondents who had taken the controversy to the public press, and it was, in my view, not in any sense unfair to tell a Press correspondent the actual words or the substance of the letter to the BBC. It is argued that the respondents cannot succeed on this issue without getting a verdict of the jury that the comment was fair, but it is, in my view, evident from the summing–up and the form of the questions to the jury agreed on by counsel that it was assumed by all parties that, if the words were comment and there was no malice, the comment was fair.

On the question whether the words were capable of a defamatory meaning, I agree with the noble lord on the Woolsack. On the question of misdirection, although the learned judge put the question correctly to the jury on certain occasions, other passages in his summing–up may have led the jury to think that, unless the words were such that a fair–minded man would have thought them true, their verdict ought to be for the appellant, although the respondents had honestly believed the words to be true. On the whole, therefore, I am of opinion that, apart from the issue of malice, the verdict could not stand.

LORD MORTON OF HENRYTON.

My Lords, counsel for the appellant suggested, in the course of his argument, that if the respondents succeeded in this appeal they would have established a right to “obliterate” a critic who had ventured to criticise their films. It would indeed be regrettable if your Lordships’ decision had any such result, or even were thought to have any such result. I shall spend a short time in considering what the respondents did, what was the position of the appellant immediately before she issued her writ against the respondents, and what is the real natural of this action. I hope that by so doing I may dispose of this suggestion, and may also lay the foundation [*473] for the views which I shall later express in regard to the issues arising on this appeal.

The act of the respondents whereof complaint is made in the action was the sending of a letter of 27 September 1946, which has already been read, to the British Broadcasting Corporation, hereafter referred to as the BBC. For the moment I disregard the subsequent telephone conversation between Mr McPherson and Mr Moynihan. It is obvious that this letter was written because Mr Eckman, Mr McPherson and their colleagues disliked the appellant’s criticisms of M–G–M films in her series of broadcasts. The appellant was, of course, entitled to express her own opinions of each week’s films, and I do not doubt that she honestly held the views that she expressed week by week, but I can well imagine that some of her criticisms of M–G–M films might cause a good deal of irritation to M–G–M officials and that the matter might well be brought to a head by her criticism of “The Green Years” on 22 September 1946. That criticism is quite short and I shall set it out in full, as the setting out of one of the appellant’s criticisms may help to explain the views which I express hereafter.

“No flesh and blood at all appears in ‘The Green Years’: nothing but whimsy: pseudo–Scottish whimsy at that. The picture was made in Hollywood, and there’s something about the Californian sunshine which makes tossing the caber, by extras put into kilts, appear an even less probable form of sport than it has always seemed to me in Scotland. (I know I shall be howled at by my fellow–countrymen for this remark). To my fascinated eye, some of the participants in the reconstituted Highland Games we are shown look to be dressed in their combinations, which certainly adds novelty to the scene. This quality, however, doesn't extend to other parts of the film. Echoes of ‘The Bells of St. Mary's’ and ‘The Hoodlum Saint’—‘The Green Years’ has a strongly Catholic theme: the poor boy from Dublin comes to live with unbelievably dour Scots relatives, fights for his faith, loses it, and finds it again at the end, reinforced with love and success thrown in. Echoes of innumerable pictures about lovable vagabonds who would be merely tiresome in real life—unfortunate Charles Coburn, a good actor, is required to caricature a naughty old grandpa with a vast red nose, round which the whimsy clusters thickset. Echoes of ‘The Corn is Green,’ we have again the brilliant student in the dirty–faced job working and sitting for the all important scholarship exam. spurred on by the devoted teacher. There isn't an episode in this long film, running over two hours, which doesn't strike a familiar note. A familiar note of cinema—going, I mean, not of human experience. When for the sake of the plot, the little boy must be sent to school in a suit which will cause derision, his grandmother—our dear Gladys Cooper, being wasted again—makes it out of one of her petticoats. We are whimsically shown that she is wearing three plain ones, in addition to the one she sacrifices, but she chooses the bright green one with the flower pattern all over it. And, of course, one’s sympathy with the boy dies with one’s belief in the whole situation. When will Hollywood learn that to make everything larger, louder and lumpier than life is simply to diminish its effect?”

Following on this criticism, there took place a meeting between certain officials of the respondent company and other persons interested in M–G–M films, and as a result of that meeting the letter of 27 September was written. Although that letter must, of course, be read as a whole, it falls into three parts. The first part expresses an opinion of the appellant as a critic and of her criticism. To this part I shall return later. The second part contains a statement of intention. “In these circumstances we propose not to invite Mrs Robertson to review M–G–M films in future.” The third part contains a request: “we would ask your kind co–operation in restraining her from doing so” (ie, from reviewing [*474] M–G–M– films) “in BBC broadcasts.” This letter was given considerable publicity, partly because, by some means, the substance of it became known to certain journalists who, thereupon, interviewed the appellant; partly because Mr McPherson either read the letter or quoted part of it to a journalist, Mr Moynihan, and partly because the appellant herself set it out in full in a letter from herself to the editor of “The Times” which was printed in “The Times” of 4 October 1946.

What was the position immediately before the appellant issued her writ? As to the first part of the letter, the BBC had replied on 4 October,

“We wish to make it clear that we do not share your view of the criticism of Miss Arnot Robertson, in whose ability and integrity as a critic we feel confident.”

As to the second part, the respondents were, of course, entitled, if they chose, to refrain from sending an invitation to the appellant and she was equally entitled, if she chose, to see their films in the same way as any other member of the public and to comment on them in her weekly broadcasts. As to the third part, the BBC’s reply was:

“Nor can we agree to your proposal that we should ‘co–operate’ with you in placing restraint on Miss Robertson’s freedom to review particular films in future broadcasts.”

The appellant did in fact complete the series of broadcasts which she had agreed to give and there is no evidence that the respondents’ letter in any way affected the appellant’s employment from time to time by the BBC. On the contrary, there is very emphatic evidence to the opposite effect which was given by Mr Rendall, the Controller of Talks at the BBC. Thus, after the letter had been written, the appellant continued to be perfectly free to broadcast criticisms of any films, while the respondents were equally free to refrain from inviting the appellant to their Press shows. Their right to do so was never questioned in this action. They were also free to invite the BBC to co–operate with them in the manner stated in the letter of 27 September but they were aware that such an invitation would meet with a chilly response. In these circumstances, it would be a misuse of language to describe this action as one brought to establish the right of free criticism. It is in fact an action brought by a lady, who objects to certain criticisms of herself and her broadcasts, to recover damages in respect of those criticisms and an injunction to restrain their repetition.

My Lords, I now come to consider the questions arising on this appeal, and I can do so briefly, as they have already been so fully discussed. I shall confine my observations to the first sentence in the letter of 27 September 1946, as, in my view, the second sentence is quite incapable of a defamatory meaning. I start by observing that, in my opinion, the first sentence consists of two statements of opinion which cannot properly be construed as statements of fact. It is true, as counsel for the appellant pointed out, that a statement which is plainly one of fact cannot be transformed into a statement of opinion merely by prefacing it with the words “in our judgment”; but the statements “that critic is completely out of touch, etc” and “her criticisms are on the whole unnecessarily harmful to the film industry” are in their very nature statements of opinion, and if there were any doubt as to their nature it would be removed by the words “in our judgment, based upon a considerable number of talks by Mrs Arnot Robertson.” In my view, the question of “fact or opinion” should not have been left to the jury. Were these two statements of opinion capable of conveying the libellous innuendo that the appellant was an incompetent film critic? Hilbery J, and all the members of the Court of Appeal have held that they were not. I agree with them and I need not add anything on this point. Were the words used, in their natural and ordinary signification, capable of having a defamatory meaning? My Lords, I incline to think that they were not. The [*475] learned judge thought that the latter part of the sentence was capable of meaning that the appellant “went out of her way to do harm to the industry in which the subject–matter of her criticisms were displayed,” The Court of Appeal did not, I think, attach such importance to that part of the sentence but thought that the words “out of touch with” were capable of bearing the meaning “ignorant of.” To my mind, the natural meaning of the first part of the sentence is simply that the appellant’s taste in films was completely different from the “tastes and entertainment requirements of the picture–going millions who are also radio listeners.” So construed, the words are not, in my view, defamatory. It might well be expected of a film critic that her standards would be different from those of the “picture–going millions.” As to the words “her criticisms are on the whole unnecessarily harmful,” I do not think that these words, in their natural and ordinary meaning, impute to the appellant an intention deliberately to injure the film industry. I think they mean that the appellant’s criticisms were so worded as to do more harm than an adverse criticism need do to the film industry. It may well be that the respondents had in mind the fact that the appellant launched shafts of ridicule against films instead of merely pointing out their shortcomings. They may have thought, rightly or wrongly, that the appellant’s criticism of “The Green Years,” already quoted, was an example of this.

My Lords, although I have formed the view just expressed, I feel reluctant to decide this appeal on this ground, having regard to the views expressed by the learned judge and the Court of Appeal. I shall assume, therefore, that the sentence in question is capable of bearing a defamatory meaning and the jury found that it was in fact defamatory. As the occasion of writing the letter is admitted to be one of qualified privilege, the next question is: Was there evidence of malice fit to be left to the jury? My Lords, in my judgment there was not. It is, of course, plain that the intention which the respondents had in writing the letter was to ensure, so far as they could, that the appellant should no longer review M–G–M films, but, as Asquith LJ, pointed out, the existence of this intention is no evidence of malice. There is, I think, no evidence that the respondents did not honestly hold the opinions expressed in the first sentence of the letter, however misguided these opinions may have been. I do not think it necessary to discuss the various matters relied on by counsel for the appellant as being evidence on which the jury were entitled to find malice. These matters have already been discussed by your Lordships, and I am content merely to say that I agree with the views already expressed.

As to the claim for damages for slander, I do not think it matters whether Mr McPherson read the whole of the letter on the telephone to Mr Moynihan or only part of it. The protection of qualified privilege does not extend to the telephone conversation, but, in my view, the comments contained in the letter and repeated to Mr Moynihan were statements of opinion on a matter which was obviously a matter of public interest. The jury might not agree with the opinions thus expressed, but they would have no right to substitute their own opinion of the appellant’s criticisms for that of the respondents, or to try the fairness of the respondents’ comments by this standard. In the absence of any evidence that the respondents did not honestly hold the opinions expressed in their letter, I see no grounds on which they could be held to have exceeded the limits of fair comment. My Lords, on the views which I have expressed, no further question arises on this appeal. I agree that the appeal should be dismissed.

Appeal dismissed with costs.