[1991] 4 All ER 817

The plaintiff, a Russian emigré employed by the BBC's Russian service, wrote an article on the importance of distinguishing between Russia and communism which was published in a national daily newspaper. In the course of the article he criticised the BBC's Russian service for recruiting too many employees from the ethnic minorities of the Soviet Union and not enough from among those people who 'associate themselves ethnically, spiritually or religiously with the Russian people'. The defendant, also a Russian emigré, who, like the plaintiff, had suffered persecution before coming to England, was incensed by the plaintiff's article and wrote a letter, which was published in the same newspaper, in which he indicated that the article was racialist and anti-semitic in content and complained that the plaintiff was advocating that in the interest of more effective broadcasts the management of the BBC's Russian service should 'switch from professional testing to a blood test' and that 'ethnically alien' employees should be dismissed from the Russian service, however high their professional standards and integrity might be. The plaintiff considered the defendant's letter to be defamatory and brought an action for libel against the defendant, claiming that the natural and ordinary meaning of the defendant's letter was that the plaintiff advocated the introduction of blood testing as part of the recruitment process of the Russian service in order to maintain racial purity, ie recruitment on the basis of ethnic origin and not professional merit, and the dismissal of all ethnically alien employees. The defendant pleaded fair comment on a matter of public interest, but not justification. In reply the plaintiff alleged that the defendant had been actuated by express malice. At the trial the judge held that the matters complained of in the letter, construed as a whole, were to be understood as comment on a matter of public interest and not as statements of fact since it was clear that the defendant was doing no more than commenting that if effect were given to the plaintiff's views the logical outcome would be that the BBC's Russian service would pursue a strictly racialist staffing policy and, applying the objective test of fair comment, the judge further held that an honest-minded man might honestly hold the views stated as comments on the facts on which those comments were made. The judge concluded that there was no case to go to the jury since any reasonable jury, properly directed, would be bound to uphold the defence of fair comment and there was no evidence of express malice. He therefore dismissed the plaintiff's817 action. The plaintiff appealed, contending (i) that in deciding the question whether the words complained of were statements of fact or comment the court was confined to a consideration of the words themselves without reference to the letter or article as a whole and (ii) that the test of fair comment required the defendant to satisfy not only the objective test that his letter expressed views which an honest man could hold but also the subjective test of whether his comment represented an honest expression of his own view and that therefore the judge should not have withdrawn the case before the defendant had discharged the subjective burden of proof. The Court of Appeal dismissed the appeal, holding that the letter and article should be read together and, when so read, the defendant's words amounted only to comment and that, applying the normal objective test of what constituted fair comment on a matter of public interest, a reasonable jury would be bound to find that the comment was fair. The plaintiff appealed to the House of Lords.

Held - (1)(Lord Ackner dissenting) Where a letter published in a newspaper in response to an article was alleged to be libellous, the court, in deciding whether the words complained of were capable of being understood as defamatory statements of fact rather than comment on which a defence of fair comment could be sustained, had to consider the letter on its own and it was not permissible to have regard to the whole terms of the article as well as those parts of the article quoted in the letter since it was likely that the readers of the letter included a substantial number of persons who had not read the article or if they had done so did not have its terms fully in mind. There was nothing undesirable in the fact that the jury would not be allowed to consider the terms of the article in deciding whether or not the letter contained only comment but would be allowed to refer to the article in deciding whether any comment was fair, since the jury would simply be directed in deciding the first question to consider the effect of the letter on the mind of a person who had not read the article. Since a reasonable jury, looking at the defenant's letter alone, could properly find that the letter contained statements of fact, the question whether they constituted pure comment or whether they contained defamatory statements of fact should have been left to the jury. To that extent, therefore, the appeal would be allowed (see p 822 c g to p 823 a, p 824 e and p 825 d to f j, p 826 b to e and p 832 h, post).
   (2) (Per Lord Keith, Lord Brandon, Lord Templeman and Lord Oliver) A defendant who relied on a plea of fair comment in libel proceedings did not have to show that the comment was an honest expression of his own views but merely that the facts on which his comment was based were true and that the comment was objectively fair in the sense that any man, however prejudiced and obstinate, could honestly have held the views expressed, since in alleging unfairness the onus was on the plaintiff, as was the case where he alleged malice, to prove that the criticism was unfair either from the language used or from some extraneous circumstances. On the facts (Lord Ackner concurring), there was no evidence of express malice fit to go to the jury and the plaintiff had failed to discharge the burden of proof which lay on him to prove that the defendant did not honestly hold the belief which he had expressed in his letter. Accordingly, the judge had been right to withdraw that issue from the jury (see p 824 f g, p 825 a c e, p 826 d e, p 827 c d and p 832 h, post); Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067 not followed.
   Decision of the Court of Appeal [1990] 3 All ER 865 reversed in part.

Notes
For the defence of fair comment in libel proceedings, see 28 Halsbury's Laws (4th edn) paras 131-144, and for cases on the subject, see 32 Digest (Reissue) 271-286, 2238-2332.

818

   For malice generally and in relation to fair comment in particular, see 28 Halsbury's Laws (4th edn) paras 145-148, 152, and for cases on the subject, see 32 Digest (Reissue) 228-298, 2347-2432.

Appeal
The plaintiff, Vladimir Telnikoff, appealed with leave of the Court of Appeal from the decision of that court (Lloyd, Glidewell and Woolf LJJ) ([1990] 3 All ER 865, [1991] 1 QB 102) on 16 May 1990 dismissing his appeal from the judgment of Drake J given on 14 May 1989 withdrawing the action for libel brought by the plaintiff against the defendant, Vladimir Matusevitch, from the jury on the grounds that there was no case to go to the jury that a letter published in the Daily Telegraph on 18 February 1984, in which the defendant complained that an article was written by the plaintiff and published in the Daily Telegraph on 13 February was racialist and anti-semitic, was unfair comment or that the defendant was actuated by malice. The facts are set out in the opinion of Lord Keith.

14 November 1991. The following opinions were delivered.

LORD KEITH OF KINKEL. My Lords, this is an action for libel brought by one Russian emigré against another. On 13 February 1984 the plaintiff, Mr Telnikoff, was employed by the BBC Russian service as a probationer. On that date the Daily Telegraph newspaper published an article written by him headed 'Selecting the right wavelength to tune in to Russia'. Having set out the history of broadcasting to Russia, the article continued:

   The defendant, Mr Matusevitch, is a Russian Jew who suffered persecution there before emigrating. He was at the time of publication of the article employed in London by Radio Liberty, a United States radio station. Having read the article he wrote a letter to the Daily telegraph, which published it on 18 February 1984. The terms of the letter, the paragraphs of which I have numbered for ease of reference, were these:

820

   The plaintiff took strong exception to this letter. Solicitors instructed by him wrote to the defendant demanding an apology, which was not given, and on 18 April 1984 they issued a writ for libel against him, followed next day by a statement of claim, which set out the terms of the defendant's letter and pleaded in para 4:

The defendant pleaded fair comment in a matter of public interest, but not justification. The plaintiff alleged in reply that the defendant was actuated by express malice.
   On 5 October 1988 the action came to trial, in the defendant's absence, before Michael Davies J and a jury. The plaintiff was awarded damages of £65,000 and costs. However, on 28 April 1989 Michael Davies J, on the defendant's application, set aside the judgment and ordered a retrial, which took place before Drake J and a jury, starting on 22 May 1989. The plaintiff conducted his own case and the defendant was represented by counsel. At the close of the plaintiff's case on 24 May it was submitted to the judge on behalf of the defendant that there was no case to go before the jury, in respect that (1) any reasonable jury properly directed would be bound to sustain the defence of fair comment and (2) there was no evidence of express malice. Drake J upheld this submission. The plaintiff appealed to the Court of Appeal (Lloyd, Glidewell and Woolf LJJ) ([1990] 3 All ER 865, [1991] 1 QB 102), which dismissed the appeal but granted leave to appeal to your Lordships' House, which the plaintiff now does.
   The first matter considered by Drake J and the Court of Appeal was whether those parts of the defendant's letter which were defamatory in character, in particular paras (6) and (7), were capable of being regarded as statements of fact or could only properly be held to be comment. Since justification was not pleaded the plaintiff would necessarily succeed if the jury, the issue being left to them, were to decide that these paragraphs contained statements of fact. Drake J said that on a consideration of the letter as a whole he had no doubt that these paragraphs constituted comment. If he had felt any doubts about the matter he would presumably have left it to the jury to decide, having regard to the law as stated in 28 Halsbury's Laws (4th edn) para 228:

821

   In the Court of Appeal Lloyd LJ expressed the opinion that the paragraphs in question could clearly amount only to comment, whether regard was had only to the terms of the letter as a whole or whether, as he thought to be correct, the contents of the plaintiff's article were also taken into account (see [1990] 3 All ER 865 at 871-872, [1991] 1 QB 102 at 110-111). Glidewell and Woolf LJJ, on the other hand, took the view that if the letter alone were looked at it would be arguable whether what was contained in the offending paragraphs was statement of fact or comment; but they both considered that the letter should be read along with the contents of the plaintiff's article, and that when that was done the only possible view was that the paragraphs in question constituted comment (see [1990] 3 All ER 865 at 880-881, [1991] 1 QB 102 at 121-122, 123).
   I am of the opinion, in common I understand with the majority of your Lordships, that if the letter alone is looked at it would be open to a reasonable jury properly to find that the offending paragraphs contained statements of fact. Paragraph (2) of the letter quotes one sentence from the plaintiff's article. Paragraph (6) states, in the form of a statement of fact, that the plaintiff demands that the BBC Russian service should switch from professional testing to a blood test. It seems to me that this is capable of being read as describing something else that the plaintiff has said in his article. As regards para (7), the words 'Mr Telnikoff is stressing his racialist recipe' are undoubtedly pure comment, but what follows, 'by claiming that no matter how high the standards and integrity "of ethnically alien" people Russian staff may be, they should be dismissed', is in my view capable of being read as a fact upon which the defendant is commenting, that fact being that the plaintiff has made such a claim in his article. The reader might be the more likely to think that the plaintiff had made such a claim by reason that the words 'of ethnically alien' are placed in inverted commas, thus indicating that they are a quotation from the article (where in fact no such words appear). Drake J took the view that paras (6) and (7) did no more than express what would be the logical outcome if the views stated in the plaintiff's article were given effect to, while Lloyd LJ said that the sense of the words in para (6) was 'Mr Telnikoff in effect demands ... ' (see [1990] 3 All ER 865 at 872, [1991] 1 QB 102 at 111; Lloyd LJ's emphasis). But the fact remains that the writer of the letter has used no such words nor any others apt to indicate that what he has written are inferences drawn from the terms of the article.
   The question then arises whether it is permissible to have regard to the whole terms of the plaintiff's article, not only the sentence from it quoted in the letter, in determining whether paras (6) and (7) of the letter contain statements of fact or are pure comment. In my opinion the letter must be considered on its own. The readers of the letter must have included a substantial number of persons who had not read the article or who, if they had read it, did not have its terms fully in mind. If to such persons the letter appeared in paras (6) and (7) to contain statements of fact about what the plaintiff had written in his article, which as I have already indicated might well be the case, then in the eyes of those persons the plaintiff would clearly be defamed. The matter cannot turn on the likelihood or otherwise of readers of the letter having read the article. In some cases many readers of a criticism of some subject matter may be familiar with that subject matter but in other cases very few may be, for example where that subject matter is a speech delivered to a limited audience. The principle must be the same in either case.
   Lloyd LJ, in the course of his judgment in the Court of Appeal, was troubled by what he regarded as the anomaly that the jury should not be allowed to consider the terms of the article in deciding whether or not the letter contained only comment, but should be allowed to look at the article, if they decided that822 question affirmatively, for the purpose of deciding whether or not the comment was fair. For my part, I can see nothing undesirable about that situation. The jury would simply be directed, in deciding the first question, to consider the effect of the letter on the mind of a person who had not read the article. Lloyd LJ also considered that if juries were not allowed to consider the terms of articles upon which newspaper correspondents chose to comment, the whole text of the article would have to be set out in the letter, a condition which would be unacceptable to newspaper editors, so that free discussion of matters of public interest would be restricted. That apprehension is not, in my view, well founded. The writer of a letter to a newspaper has a duty to take reasonable care to make clear that he is writing comment, and not making misrepresentations about the subject matter upon which he is commenting. There is no difficulty about using suitable words for that purpose, such as those which Lloyd LJ thought capable of being implied. Likewise any newspaper editor should be under no difficulty in observing whether his correspondent has used language apt to make clear that what he writes is pure comment and does not contain misrepresentations about what he is commenting on.
   Lloyd LJ found support for his view in the speech of Lord Porter in Kemsley v Foot [1952] 1 All ER 501, [1952] AC 345, the 'Lower than Kemsley' case. That was not a case in which any issue arose as to whether the words complained of were a statement of fact or were comment. Lord Porter said ([1952] 1 All ER 501 at 504, [1952] AC 345 at 354):

It was held that the subject matter of the comment, namely the Kemsley Press, had been indicated with sufficient clarity to justify comment being made, that subject matter being well known to the public generally. The defendant had pleaded particulars of facts about the Kemsley Press which were founded on as indicating that the comment was fair. Lord Porter said ([1952] 1 All ER 501 at 504-505, [1952] AC 345 at 355-356):

All that was said in a context in which the words complained of were admitted to be pure comment, and the passage therefore has no application to the present case.
   There can be no doubt that where the words complained of are clearly to be recognised as comment, and the subject matter commented on is identified, then that subject matter must be looked at to determine whether the comment is fair. Kemsley v Foot is no authority for the view that the subject matter may be looked at for the purpose of turning what on the face of it is a statement of fact into a comment. The subject matter may, of course, be looked at for the purpose of ascertaining that the statement of fact is untrue. In Merivale v Carson (1887) 20 QBD 275, [1886-90] All ER Rep 261 a published criticism of a play made reference to one of the characters being 'a naughty wife', though in fact there was no adulterous wife in the play. Bowen LJ said (20 QBD 275 at 284, [1886-90] All ER Rep 261 at 265):

   I conclude that Drake J was wrong in failing to leave to the jury the question whether paras (6) and (7) of the defendant's letter contained statements of fact.
   Drake J also refused to leave to the jury the question whether, assuming that paras (6) and (7) were pure comment, they constituted fair comment on a matter of public interest, and the Court of Appeal upheld his decision on this matter also. Both took the view that on an application of the normal objective test of fair comment any reasonable jury would be bound to hold that it was satisfied. Lloyd LJ correctly stated the test as being whether any man, however prejudiced and obstinate, could honestly hold the view expressed by the defendant in his letter (see [1990] 3 All ER 865 at 873, [1991] 1 QB 102 at 112-113). I agree with Drake J and the Court of Appeal as to the only reasonable outcome of a proper application of that test, and find it unnecessary to elaborate the matter. It was, however, argued by counsel for the plaintiff before the Court of Appeal and in your Lordships' House that in addition to satisfying the objective test a defendant pleading fair comment must prove affirmatively that the comment represented his own honest opinion, which the present defendant failed to do, since the case was withdrawn from the jury before any evidence had been given by him. Lloyd LJ, after an extensive review of the authorities, concluded that this argument was unsound (see [1990] 3 All ER 865 at 874-879, [1991] 1 QB 102 at 114-119). These authorities included Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067, in the Supreme Court of Canada. The defendants were the editor and the owner and publisher of a newspaper which had published a letter to the editor in which the writers accused the plaintiff of holding racist views. The writers of the letter did not give evidence, but the defendants in their evidence made it clear that the letter complained of did not represent the honest expression of their own views. The trial judge refused to leave the defence of fair comment to the jury, and the Supreme Court, by a majority of six to three, held that he had824 acted rightly. Lloyd LJ expressed himself as preferring the judgment of the minority to that of the majority, and as regarding the former as being fully supported by the English authorities cited in his extensive review. I find myself in respectful agreement with him and feel that to repeat his review would be a work of supererogation. The law is correctly stated in Gatley on Libel and Slander (8th edn, 1981) p 348, para 792, as follows:

   Finally, it was argued for the plaintiff that Drake J was wrong to decide that there was no evidence of express malice fit to go before the jury, and that the Court of Appeal was wrong in upholding that decision. I am satisfied that the decision was correct, and find it unnecessary to go into any detail upon this matter.
   My Lords, for these reasons I would allow the appeal only on the issue as to whether it should have been left to the jury to determine whether paras (6) and (7) of the defendant's letter constituted pure comment or whether they contained defamatory statements of fact. Since the argument dealt extensively with issues upon which the plaintiff has been unsuccessful, I would award him only one-half of his costs before the Court of Appeal and your Lordships' House, but the whole of his costs of the proceedings before Drake J.

LORD BRANDON OF OAKBROOK. My Lords, for the reasons given in the speech delivered by my noble and learned friend Lord Keith of Kinkel, I would allow the appeal to the extent proposed by him.

LORD TEMPLEMAN. My Lords, the plaintiff alleges that certain of the contents of the letter by the defendant set forth with numbered paragraphs in the speech of my noble and learned friend Lord Keith of Kinkel were defamatory, ie reflected in the reputation of the plaintiff and tended to lower him in the estimation of right-thinking members of society. If the contents of the letter were fair comment, then the plaintiff cannot complain not withstanding that they were defamatory. If the contents of the letter included defamatory statements of fact, however, then the plaintiff will succeed in his action for defamation unless the statements of fact set out in the letter were true. If the contents-

(See Turner (orse Robertson) v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461 per Lord Porter.) In the present case the question, whether to be answered by judge or jury, is whether the letter alleged facts or made comments. Drake J and Lloyd LJ were of the opinion that all the contents of the letter were comments (see [1990] 3 All ER 865 at 872, [1991] 1 QB 102 at 111). Your Lordships (with the possible exception of my noble and learned friend Lord Ackner) share the opinion voiced by Lord Keith of Kinkel 'that if the letter alone is looked at it would be open to a reasonable jury properly to find that the offending passages contain statements of fact'. Glidewell and Woolf LJJ were of825 the same opinion but nevertheless concluded that all the contents were unarguably comment and not fact in the light of the plaintiff's article which inspired the defendant's letter (see [1990] 3 All ER 865 at 881, [1991] 1 QB 102 at 122, 123). In my opinion, fact or comment depends on the true construction of the letter and not on the true construction of the article. If in the letter the defendant made allegations of fact, those allegations cannot be converted into comment by the article written by the plaintiff. This logical result is disputed on two grounds.
   First, it is said that the judge will have to direct the jury that they must refer to the article in deciding whether any comment was fair but that they must not refer to the article in deciding whether it was comment at all. My Lords, the first task of the jury, in any event, must be to decide on an examination of the letter whether the contents are fact or comment. If and only if the contents are comment the jury must then consider whether those comments are fair.
   Secondly, it is said that the defence of fair comment will be unduly restricted and freedom of the press inhibited if in deciding whether the defendant has alleged fact or has made comments the jury can only look at the defendant's statement which is claimed to be defamatory. In my opinion this argument blurs the distinction between the defence of fair comment and the defence of justification. It was argued that a newspaper could only protect itself against an action for defamation by confining criticism to passages actually set out in the criticism. I do not agree. Any critic, whether private or public, whether individual or press, must simply make clear that he is not quoting the plaintiff but is commenting on words which the plaintiff has uttered. In the present case it will be for the jury to decide whether the parts of the letter put words into the mouth of the plaintiff.
   For these reasons and in agreement with the views expressed by Lord Keith I agree with the orders which he has proposed.

LORD ACKNER. My Lords, your Lordships are once more concerned with one of the fundamental freedoms-the freedom of speech. This appeal concerns the plea of fair comment-the right of the citizen honestly to express his genuine opinion on a subject of public interest, however wrong or exaggerated or prejudiced that opinion may be. There have been many judicial pronouncements on how vital to the functioning of a democratic society is the freedom to comment on matters of public interest. I content myself with citations from two cases.
   In Lyon v Daily Telegraph Ltd [1943] 2 All ER 316 at 319, [1943] KB 746 at 752, a decision of the Court of Appeal to which I will have occasion again to refer, Scott LJ said:

   Towards the end of his judgment Scott LJ added ([1943] 2 All ER 316 at 320, [1943] KB 746 at 753);

   In Slim v Daily Telegraph Ltd [1968] 1 All ER 497 at 503, [1968] 2 QB 157 at 170 Lord Denning MR said:

826

In the Report of the Committee on Defamation (Cmnd 5909 (1975)) under the chairmanship of the late Faulks J it is stated (at para 151):

I entirely agree with the views expressed by my noble and learned friend Lord Keith of Kinkel supporting the decision of the Court of Appeal ([1990] 3 All ER 865, [1991] 1 QB 102) and the trial judge, Drake J, that there was no evidence of malice fit to go to the jury and that accordingly the plaintiff, the appellant before your Lordships, failed to discharge the burden of proof which lay upon him that the defendant, the respondent to this appeal, did not honestly hold the belief which he expressed in his letter to the Daily Telegraph and which was published on 18 February 1984. However, the fundamental question which remains is whether the words complained of in that letter were capable of being understood as a statement or statements of fact, since if they were, they were defamatory, there being no attempt to justify them. It is common ground that it is for the judge alone to decide whether the words complained of are capable of being a statement of a fact or facts and whether his ruling is right or wrong is matter of law for the decision of an appellate tribunal. Drake J decided that the words were not so capable and his decision was upheld by the Court of Appeal.
   It is not always easy to draw the distinction between an expression of an opinion and an assertion of fact. The very same words may be one or the other according to their context. This point is cogently made in Winfield and Jolowicz on Tort (11th edn, 1979) p 304 where this example is provided:

I do not take it to be disputed that whether the words complained of were reasonably capable of being understood as comment or a statement of fact must depend on a consideration of the whole of the words used, their context and the circumstances of publication. The vital issue in this case is-what is their context?
   The respondent's letter which was published in the Daily Telegraph had been stimulated by and indeed brought into existence as a result of the publication in that newspaper on 13 February 1984 (some five days earlier than the publication of the respondent's letter) of an article written by the appellant entitled 'Selecting the Right Wavelength to Tune into Russia'. The appellant was then employed by the BBC Russian service as a probationer. The respondent was also employed at the relevant time by the same service in the BBC. He is a Russian Jew. He was much incensed by the appellant's article, which he regarded as racialist and anti-semitic. As Lloyd LJ pointed out in his judgment, the main thrust of the article was the importance of distinguishing between Russia on the one hand and communism on the other (see [1990] 3 All ER 865 at 867-868, [1991] 1 QB 102 at 105-106). Having traced the history of Russian broadcasting since the early 1970s the article continued:

In the remaining paragraphs of the article the appellant then made quite a different point. These need to be set out in full.

   The appellant by submitting his article for, and thus achieving, its publication exposed himself to and certainly, by implication, invited comment through the same medium. The invitation was accepted with indignation.
   I set out the respondent's letter of 18 February, for convenience sake, numbering each of the paragraphs.

   One matter is crystal clear, that at the very outset of his letter the respondent identified, both by its title and by its date, the appellant's article. He stated in terms that he was shocked, particularly by that part of the appellant's article which alleged inadequacies in the BBC's Russian service recruitment policies and he quoted from the very first paragraph of the excerpt of the article which I have set out above. He then, to put the matter neutrally, gave vent to his feelings. Your Lordships are concerned with whether the words complained of were capable of being understood as statements of fact or facts rather than comment. If they were so capable then it is common ground that it would have been the judge's duty to leave the question-fact or comment-to the jury.
   Let me first identify what are the words alleged to be statements of fact rather than statements of opinion or comment. Mr Browne QC, for the appellant, relies upon paras (6) and (7) of the letter, coupled with the final paragraph. In relation to para (6), while conceding that the reference to 'a blood test' was plainly not meant to be taken literally, he contended that the paragraph was capable of being construed as a factual statement that the appellant had demanded that the BBC should vet employees for employment and reject those who were of Jewish blood, regardless of their abilities.
   As regards para (7), he contended that the statement that the appellant claimed that no matter how high the standards and integrity 'of ethnically alien' people Russian staff might be they should be dismissed, was capable of being construed as a factual statement.
   As regards para (9), Mr Browne appeared to rely on the contents of this paragraph essentially as material for the jury's consideration as to whether the respondent could honestly have believed in the comments which he had expressed in his letter. To my mind this was the only possible use that could be made of829 this paragraph and I agree with your Lordships that it failed. This paragraph is giving the respondent's interpretation of the appellant's view, as expressed in his article, and is characterising them as being racialist. That is a statement, be it right or wrong, of the respondent's opinion.
   I now turn to the issue of public importance, which appears to have motivated the Court of Appeal to grant leave to appeal to your Lordships' House. Is the court entitled, in deciding whether the words complained of are comment or statements of fact, not only to look at the whole of the contents of the letter (this was not in dispute before your Lordships) but also the very article to which the letter refers. In short, is the article part of the context in which the letter is to be construed?
   It is accepted that in most cases it would be apparent from the publication itself whether the words complained of are comment or not. It is however accepted by Mr Browne that in some cases it may be necessary to have regard to the wider context, for example to documents which are, as it were, incorporated in the publication by reference. This is accepted to be permissible when a question arises as to the meaning of the alleged libel (see Gatley on Libel and Slander (8th edn, 1981) p 55, para 102). Is it also permissible where the question is whether words complained of are statements of fact or comment? On this there is no authority direct in point.
   Mr Browne repeated the submission which he had unsuccessfully made to the Court of Appeal. He contended that your Lordships are confined to the four corners of the letter. He conceded that the subject matter on which the respondent was commenting, namely the article, was sufficiently indicated in the letter. But the letter might, he said, have been read by someone who had no ready access to the article. Accordingly, the question of construction, which he described as purely linguistic or grammatical, must be answered by reference to the letter alone. The article, the subject matter of the letter, must not be referred to.
   I share the view expressed in particular by Woolf LJ in his judgment that, if the court is not entitled to look at the material on which it is alleged that the words complained of were commenting, it would unduly restrict the defence of fair comment (see [1990] 3 All ER 865 at 881, [1991] 1 QB 102 at 123). Indeed, it would diminish and impair this vitally important right, by whittling it down by a wholly unjustified legal refinement. If the criticism of an article published in a newspaper on a subject matter of public importance is to be confined to passages actually set out in the criticism, then the freedom to comment on a matter of public importance becomes, from a practical point of view, illusory or non-existent. The ability of a defendant to comment should not depend on whether or not the reader is aware of the material which is the subject of the comment. As pointed out in terms by Woolf LJ, the defence of fair comment is based on the principle that a citizen should be entitled to comment on a matter of public interest and the fact that the publication is limited does not affect the public interest (see [1990] 3 All ER 865 at 881, [1991] 1 QB 102 at 123).
   In my judgment the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves. The defence of fair comment is available to a defendant who has done no more than express his honest opinion on publications put before the public. It is sufficient for him to have identified the publication on which he is commenting, without having set out such extracts therefrom as would enable his readers to judge for themselves whether they agreed with his opinion or not. Were the law otherwise it would be necessary or at the very least forensically expedient to set out, ipsissima verba, the entire contents of the article upon which830 as a matter of public importance the citizen is entitled to comment honestly. In the result the important contribution to public discussion on matters of public importance arising out of the publication in the press of correspondence would be seriously curtailed. Yet a free and general discussion of matters of public interest is fundamental to a democratic society.
   The views which I have stated above seem to me not only to be clearly right in principle, but appear also to reflect the views of your Lordships' House, as expressed in Kemsley v Foot [1952] 1 All ER 501, [1952] AC 345. In that case an article criticising the conduct of the Beaverbrook press describe it as 'lower than Kemsley'. No details were contained in the article to substantiate the charge against Lord Kemsley. Nevertheless, it was held that there was a sufficient substratum of fact indicated in the libel to justify the allegation being treated as comment. The subject matter which was implied was that the plaintiff was in control of newspapers and that the conduct of the publishers was in question. The defendant was entitled to say, per Lord Porter ([1952]1 All ER 501 at 506, [1952] AC 345 at 357):

In the course of his speech Lord Porter said ([1952] 1 All ER 501 at 504-505, [1952] AC 345 at 355):

   As Lord Oaksey in his speech in the same case pointed out ([1952] 1 All ER 501 at 508, [1952] AC 345 at 360-361):

   In Kemlsey's case it was ultimately admitted on behalf of the appellant that831 the facts necessary to justify comment might be implied from the terms of the impugned article:

(See [1952] 1 All ER 501 at 505, [1952] AC 345 at 357 per Lord Porter.)
   Quite apart from the principle of the matter, an important practical point is made by Lloyd LJ in his judgment and repeated by Glidewell LJ in his judgment (see [1990] 3 All ER 865 at 871, 880, [1991] 1 QB 102 at 110, 122). If the question, statement of fact or comment?, had fallen to be decided by the jury, the judge would have to direct the jury that they must refer to the article in deciding whether any comment was fair or not but if Mr Browne's contention was correct, they must not refer to the article in deciding whether it was comment at all.
   If this be the law, then I echo the words of Russell LJ, in Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523 at 540, [1965] 1 WLR 805 at 825:

   Given that the judge was entitled, and indeed the jury would have been entitled to consider the whole of the article, I have no difficulty in agreeing with the Court of Appeal that the jury would have been bound to conclude that the matters of which complaint is made in the letter were, though perhaps expressed as if they were statements of fact, in reality comment on the contents of the article or part of it. In just the same way as it is accepted that the reference to 'a blood test' (despite what appears in the particulars of the statement of claim) is not to be taken literally, the same is true of the appellant's alleged 'demand' in para (6) of the letter. I agree with the Court of Appeal that any fair-minded man reading the letter as a whole in the light of the article would regard it as an inference drawn by the author from the first paragraph of the excerpt from the article which I have quoted, part of which was set out in the respondent's letter, together with the penultimate and final paragraphs of the article. The sense of the words is 'Mr Telnikoff in effect demands ... ' The same applies, mutatis mutandis, to para 7 of the letter.
   Accordingly, I would have dismissed this appeal.

LORD OLIVER OF AYLMERTON. My Lords, I have had the advantage of reading the speech prepared by my noble and learned friend Lord Keith of Kinkel. I agree with it and for the reasons which he gives I, too, would allow the appeal.

Solicitors: Peter Carter-Ruck & Partners; Bindman & Partners.