Branson v Bower

Factual and Procedural Background

This interlocutory appeal arises from libel proceedings initiated by the Appellant against the Respondent. The Appellant challenges a portion of an order made by Judge Eady on 18th December 2000, which declared that the words complained of were comment rather than statements of fact. The dispute originated from the Appellant's bid, under the name "The Peoples Lottery," to operate the National Lottery. The Appellant publicly asserted that all profits from the bid would benefit good causes. Subsequently, an article authored by the Respondent was published by a newspaper, containing statements and inferences about the Appellant's motives in making the bid. The Appellant claimed that these statements imputed dishonourable motives and were defamatory. The Respondent denied the meanings alleged and raised defences including justification, fair comment, and qualified privilege. The issue of whether the complained-of words were statements of fact or comment was initially decided by the judge and is the subject of this appeal.

Legal Issues Presented

1. Whether the words complained of in the article were statements of fact or were properly characterised as comment.
2. If the words are comment, whether the defence of fair comment applies.
3. The extent to which the European Convention on Human Rights, particularly Article 10, affects the traditional domestic law distinction between fact and comment in defamation proceedings.

Arguments of the Parties

Appellant's Arguments

• The assertion as to the Appellant's motive was capable of being a statement of fact rather than comment.
• The alleged imputation of dishonourable motives should be considered fact and thus left to a jury to determine.
• The article’s reference to the Respondent completing an unauthorised biography of the Appellant lends weight to the view that the statements were factual assertions based on special knowledge.
• European Court of Human Rights jurisprudence does not justify altering the traditional domestic law principles regarding fact and comment.
• Cited the judgment in Hunt -v- Star Newspaper [1908] 2 KB 309 emphasizing the necessity for comment to be clearly distinguishable from fact to qualify for the defence of fair comment.

Respondent's Arguments

• The words complained of were expressions of opinion or comment based on inferences drawn from facts set out in the article.
• The defence of fair comment applies because the statements were not presented as factual assertions but as opinions about the Appellant's motives.
• Domestic defamation law, consistent with Article 10 of the European Convention on Human Rights, provides a framework allowing for comment and opinion without requiring proof of truth.
• Referenced principles from the European Court of Human Rights and domestic authorities supporting the classification of motive attributions as comment in appropriate contexts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General -v- Guardian Newspapers (No 2) [1990] 1 AC 109	English defamation law is consistent with European Convention on Human Rights safeguards.	Used to affirm that domestic law must be applied with regard to Convention principles.
Derbyshire County Council -v- Times Newspapers [1993] AC 534	Support for the compatibility of English defamation law with Article 10 rights.	Referenced to confirm the duty to apply domestic law consistent with Convention rights.
MacDonald's Corporation -v- Steel & Anr [unreported, 1999]	Burden of proof on defendant to prove substantial truth of defamatory statements.	Reaffirmed the principle that defamatory words are presumed false unless justified.
Blackshaw -v- Lord [1984] QB 1	Defence of qualified privilege for publication on matters of public interest.	Referenced as part of the framework for defences available to defendants.
Edgington -v- Fitzmaurice [1885] 29 ChD 459	State of mind is a fact; attribution of motives can be factual.	Considered in determining whether motive attributions are fact or comment.
Campbell -v- Spottiswoode [1863] B&S 769	Historical approach to fair comment and motive attribution.	Used to explain traditional views on comment versus fact.
Kemsley -v- Foot [1952] AC 345	Inferences as opinions can be protected by fair comment defence.	Applied to support that inferences about motives may be comment.
Neilson & Johnsen -v- Norway (European Court of Human Rights)	Distinction between factual statements and value judgments/opinions under Article 10.	Considered in evaluating the effect of ECHR jurisprudence on domestic law.
Reynolds -v- Times Newspaper [1999] 3 WLR 1010	Defence of responsible journalism within Article 10 framework.	Referenced regarding the impact of the Human Rights Act on defamation law.
McCartan Turkington Breen -v- Times Newspaper [2001] EMR 1	Consideration of freedom of expression and defamation under Human Rights Act.	Used to illustrate judicial approach to Article 10 in defamation cases.
Hunt -v- Star Newspaper [1908] 2 KB 309	Requirement that comment must be clearly distinguishable from fact to qualify for fair comment defence.	Relied upon by the Appellant to argue that the words complained of were fact, not comment.
Clarke -v- Norton [1910] VLR 494	Definition of comment as inference, deduction, or opinion.	Adopted to explain the traditional common law test for comment.

Court's Reasoning and Analysis

The court examined the nature of the words complained of in the context of the entire article. The judge applied established principles of English defamation law, consistent with the European Convention on Human Rights, particularly Article 10. The court acknowledged that while the attribution of a person's state of mind can constitute a statement of fact, such attributions may also be expressions of opinion or inference depending on context.

The judge reasoned that the Respondent's words were a series of opinions about the Appellant's motives, based on inferences from facts set out or referred to in the article. As such, these were comments rather than factual assertions requiring proof of truth. The court noted that the defence of fair comment applies when opinions are based on facts that can be proven and the opinions are those a reasonable person could hold.

The court rejected the Appellant's argument that the matter should have been left to a jury, finding that no reasonable jury could conclude the statements were anything other than comment in the article’s full context. The court also considered, but ultimately found unnecessary to decide, the extent to which the Human Rights Act 1998 and related European jurisprudence might affect the traditional domestic test for fact versus comment.

In summary, the court upheld the judge’s decision that the words were comment and thus not actionable as statements of fact.

Holding and Implications

The court DISMISSED THE APPEAL, affirming the lower court's ruling that the words complained of were comment and not statements of fact.

The direct effect of this decision is that the Appellant's claim that the words were defamatory statements of fact is rejected at this interlocutory stage. No new precedent was established; rather, the ruling confirms the application of established principles distinguishing comment from fact in defamation law, consistent with both domestic law and the European Convention on Human Rights framework.