12/10/2010

UK Supreme Court allows "fair comment" defense in libel lawsuit filed by bands against former booking agent

London has been called the "libel capital" of the world and a "libel tourism" destination. Indeed, things had become so bad - from an American perspective - that last August (2010), Congress passed the "Securing the Protection of our Enduring and Established Constitutional Heritage Act," referred to as the "SPEECH Act" for short. The law prohibits American courts from enforcing a foreign defamation judgment, unless the American court determines that the foreign defamation law provides as much protection for speech as does the First Amendment. The legislative history of the SPEECH Act makes it clear that it was aimed at - or at least provoked by - British libel judgments.

Even some Brits agree that UK libel law is heavy-handed. In a recent decision, the UK Supreme Court noted that:
All three major UK political parties committed to libel reform in their manifestos ahead of this year's [2010's] general election, admitting that the current law did not give enough protection to writers and publishers and favoured those suing for libel too heavily. Lord McNally told a meeting of libel reform activists that, "in its current state, English libel law is not fit for purpose". We agree [with campaigners that] the law needs reforming and have been working on a draft Defamation Bill, which we hope to publish and put out for consultation in March [2011]," he said.
The case in which this statement was made did not involve Americans. It was a libel lawsuit filed by two British bands - "The Gillettes" and "Saturday Night at the Movies" - against their former booking agent, as a result of unflattering things the agent said about the bands on the agent's website. In response to the suit, the agent asserted the defense of "fair comment" - a defense that lower courts said was not available, because the agent had not stated the facts that were the basis for his unflattering comments, as British law then required. However, in its opinion in Spiller v. Joseph, the UK Supreme Court has ruled that the "fair comment" defense is available, so long as the offending statement "implicitly indicate[s], at least in general terms, the facts on which it is based." The agent's website satisfied that standard.