Telnikoff v Matusevich [1991] UKHL 16 (14 November 1991)

Telnikoff (Appellant)

v.
Matusevitch (Respondent)

JUDGMENT

Die Jovis 14° Novembris 1991

Upon Report from the Appellate Committee to whom was
referred the Cause Telnikoff against Matusevitch, That the
Committee had heard Counsel as well on Monday the 15th as on
Tuesday the 16th and Wednesday the 17th days of July last,
upon the Petition and Appeal of Vladimir Ivanovich Telnikoff
of Garden Flat, 26 Northwood Road, London, N6 5TP, praying
that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty’s Court of Appeal of
the 16th day of May 1990, might be reviewed before Her Majesty
the Queen in Her Court of Parliament and that the said Order
might be reversed, varied or altered or that the Petitioner
might have such other relief in the premises as to Her Majesty
the Queen in Her Court of Parliament might seem meet; as upon
the case of Vladimir Matusevitch lodged in answer to the said
Appeal; and due consideration had this day of what was offered
on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 16th day of May 1990 complained of in the said
Appeal be, and the same is hereby, Set Aside and that the
Order of Mr. Justice Drake of the 25th day of May 1989 be,
and the same is hereby, Set Aside: And it is further Ordered,
That the Cause be, and the same is hereby, remitted back to
the Queen’s Bench Division of the High Court of Justice with a
direction that it be left to a jury to determine whether
paragraphs 6 and 7 of the respondent’s letter constituted pure
comment or whether they contained defamatory statements of
fact: And it is also further Ordered, That the Respondent do
pay or cause to be paid to the said Appellant the Costs
incurred by him in the proceedings before Mr. Justice Drake,
one-half of the costs incurred by him in the Court of Appeal
and also one-half of the Costs incurred by him in respect of
the said Appeal to this House, the amount of such last-
mentioned Costs to be certified by the Clerk of the
Parliaments if not agreed between the parties.

Cler: Parliamentor:

Judgment: 14.11.91

HOUSE OF LORDS

TELNIKOFF
(APPELLANT)

v.

MATUSEVITCH
(RESPONDENT)

Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Oliver of Aylmerton

LORD KEITH OF KINKEL

My Lords,

This is an action for libel brought by one Russian emigre
against another. On 13 February 1984 the plaintiff, Mr.
Telnikoff, was employed by the B.B.C. 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:

“But still, after three decades of gradually becoming aware
of the significance of Russian language broadcasting, I
believe its general concept has never been set right. It
continues to reflect the fatal confusion of the West, which
has yet to clarify to itself whether it is threatened by
Russia or by Communism. We fail to understand that
Communism is as alien to the religious and national
aspirations of the Russian people as those of any other
nation.

“This confusion further manifests itself in the policy of
recruitment for the Russian Service. While other services
are staffed almost exclusively from those who share the
ethnic origin of the people to whom they broadcast, the
Russian Service is recruited almost entirely from Russian-
speaking national minorities of the Soviet empire, and has
something like 10 per cent of those who associate
themselves ethnically, spiritually or religiously with Russian
people. However high the standards and integrity of that
majority there is no more logic in this than having a Greek
Service which is 90 per cent. recruited from the Greek-
speaking Turkish community of Cyprus.

“When broadcasting to other East European countries, we
recognise them to be enslaved from outside, and better able
to withstand alien, Russian, Communism through our
assertion of their own national spirit and traditions.

– 1 –

However, this approach, leaves room for flirting with Euro-
communism or ‘socialism with a human (non-Russian) face’
as a desirable future alternative, and well suits the Left in
the West.

“Resisting the ideological advance of Communism by
encouraging anti-Russian feelings is of less obvious value
with a Russian audience. Making ‘Russian’ synonymous with
‘Communist’ alienates the sympathetic Russian listeners. It
stirs up social resentment in others against the Russians.
Making those words synonymous also makes sympathy for
Russia into support for the Communist system.”

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:

      1. “Sir – Having read ‘Selecting the Right Wavelength to Tune
        in to Russia’ (Feb 13) I was shocked particularly by the part
        on alleged inadequacies of the B.B.C.’s Russian Service
        recruitment policies.

      2. “Mr. Vladimir Telnikoff says: ‘While other services are
        staffed almost exclusively from those who share the ethnic
        origin of the people to whom they broadcast, the Russian
        Service is recruited almost entirely from Russian-speaking
        national minorities of the Soviet empire.

      3. “Mr. Telnikoff must certainly be aware that the majority of
        new emigres from Russia are people who grew up, studied
        and worked in Russia, who have Russian as their mother
        tongue and have only one culture – Russian.

4. “People with Jewish blood in their veins were never allowed
by the Soviet authorities to feel themselves equal with
people of the same language, culture and way of life.
Insulted and humiliated by this paranoic situation, desperate
victims of these Soviet racialist (anti-Semitic) policies took
the opportunity to emigrate.

      1. “Now the B.B.C.’s Russian Service, as well as other similar
        services of other Western stations broadcasting to Russia,
        who are interested in new staff members (natives) employ
        those people in accordance with common democratic
        procedures, interested in their professional qualifications and
        not in the blood of the applicants.

      2. “Mr. Telnikoff demands that in the interest of more
        effective broadcasts the management of the B.B.C.’s Russian
        Service should switch from professional testing to a blood
        test.

      3. “Mr. Telnikoff is stressing his racialist recipe by claiming
        that no matter how high the standards and integrity ‘of
        ethnically alien’ people Russian staff might be, they should
        be dismissed.

– 2 –

      1. “I am certain the Daily Telegraph would reject any article
        with similar suggestions of lack of racial purity of the
        writer in any normal section of the British media.

      2. “One could expect that the spreading of racialist views
        would be unacceptable in a British newspaper.”

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
paragraph 4:

“In their natural and ordinary meaning the said words meant
and were understood to mean that the Plaintiff

(i) Advocated the introduction of blood-testing as part of
the recruitment process of the BBC Russian Services,
in order to maintain racial purity.

(ii) Advocated the dismissal of employees of the BBC
Russian Service, on racial grounds.

(iii) Had made statements inciting racial hatred and/or
racial discrimination.

(iv) Was a racialist and/or an anti-semite and/or a
supporter and/or proponent of doctrines of racial
superiority or racial purity.”

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 re-trial, 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 [1991] 1 Q.B. 102 (Lloyd, Glidewell and Woolf
L.JJ.), 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 paragraphs 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

– 3 –

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 arty doubt about
the matter he would presumably have left it to the jury to decide,
having regard to the law as stated in Halsbury’s Laws of England,
4th ed., (1979) vol. 28, para 228:

“The question whether all or some of the words complained
of are statements of fact or comments is a question of
construction for the judge. If, in his opinion, there is no
reasonable doubt, he must direct the jury accordingly; but
if, in his view, there is reasonable doubt as to whether the
words are statements of fact or expresions of opinion he
must leave it to the jury to decide.”

In the Court of Appeal Lloyd L.J. 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. Glidewell and
Woolf L.JJ., 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.

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 B.B.C. 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 paragraph 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 paragraphs 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 L.J. [1991]
1 Q.B. 102, 111E said that the sense of the words in paragraph 6
was “Mr. Telnikoff in effect demands . . .”. 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.

– 4 –

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
paragraphs 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 paragraphs 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 L.J. 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 that
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 L.J.
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
L.J. 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 L.J. found support for his view in the speech of Lord
Porter in Kemsley v. Foot [1952] A.C. 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, at p. 354:

“It is not, as I understand, contended that the words
contained in that article are fact and not comment: rather
it is alleged that they are comment with no facts to
support it. The question for your Lordships’ decision is,
therefore, whether a plea of fair comment is only
permissible where the comment is accompanied by a

– 5 –

statement of facts upon which the comment is made and to
determine the particularity with which the facts must be

stated.”

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, at pp. 355-356:

“If an author writes a play or a book or a composer
composes a musical work, he is submitting that work to the
public and thereby inviting comment. Not all the public
will see or read or hear it but the work is public in the
same sense as a case in the Law Courts is said to be heard
in public. In many cases it is not possible for everyone who
is interested, to attend a trial, but in so far as there is
room for them in the court all are entitled to do so, and
the subject-matter upon which comment can be made is
indicated to the world at large.

The same observation is true of a newspaper. Whether the
criticism is confined to a particular issue or deals with the
way in which it is in general conducted, the subject-matter
upon which criticism is made has been submitted to the
public, though by no means all those to whom the alleged
libel has been published will have seen or are likely to see
the various issues. Accordingly, its contents and conduct
are open to comment on the ground that the public have at
least the opportunity of ascertaining for themselves the
subject-matter upon which the comment is founded. I am
assuming that the reference is to a known journal: for the
present purpose it is not necessary to consider how far
criticism without facts upon which to base it is subject to
the same observation in the case of an obscure publication.”

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
 [1952] A.C. 345 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 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 Q.B.D. 275 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 L.J. said,
at p. 284:

“Still there is another class of cases in which, as it seems
to me, the writer would be travelling out of the region of
fair criticism – I mean if he imputes to the author that he
has written something which in fact he has not written.

– 6 –

That would be a misdescription of the work. There is all
the difference in the world between saying that you
disapprove of the character of a work, and that you think it
has an evil tendency, and saying that a work treats adultery
cavalierly, when in fact there is no adultery at all in the
story. A jury would have a right to consider the latter
beyond the limits of fair criticism.”

I conclude that Drake J. was wrong in failing to leave to
the jury the question whether paragraphs 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 paragraphs 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 L.J. 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. 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 L.J., after
an extensive review of the authorities, concluded that this
argument was unsound. These authorities included Chernesky v.
Armadale Publishers Ltd.
 (1978) 90 D.L.R. (3rd) 321, 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 had acted rightly. Lloyd L.J.
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 ed. (1981), p.
348 para. 792, as follows:

“Onus of proof of malice; fair comment. In the same way,
the defendant who relies on a plea of fair comment does
not have to show that the comment is an honest expression
of his views. ‘In alleging any 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.'”

– 7 –

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 paragraphs 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, i.e. reflected on 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 notwithstanding 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 –

“… were a statement of fact, 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 comment 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.”
(per Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures
Ltd.
 [1950] 1 All E.R. 449, 461).

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 L.J. were of the opinion that all the contents
of the letter were comments. Your Lordships (with the possible

– 8 –

exception of my noble and learned friend, Lord Ackner) share the
opinion voiced by Lord Keith “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 L.JJ. were of 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.
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.

– 9 –

In Lyon v. The Daily Telegraph Ltd. [1943] K.B. 746, a
decision of the Court of Appeal to which I will have occasion
again to refer, Scott L.J. said, at p. 752:

“The reason why, once a plea of fair comment is
established, there is no libel, is that it is in the public
interest to have free discussion of matters of public
interest.”

Towards the end of his judgment Scott L.J. added, at p.
753:

“It [the right of fair comment] is one of the fundamental
rights of free speech and writing which are so dear to the
British nation, and it is of vital importance to the rule of
law on which we depend for our personal freedom that the
courts should preserve the right of ‘fair comment’
undiminished and unimpaired.”

In Slim v. The Daily Telegraph Ltd. [1968] 2 Q.B. 157, 170
Lord Denning M.R. said that:

“. . . the right of fair comment is one of the essential
elements which go to make up our freedom of speech. We
must ever maintain this right intact. It must not be
whittled down by legal refinements.”

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

“The very wide breadth of the main criterion for the
defence of fair comment (could an honest albeit prejudiced
person have expressed such an opinion) has stood for over a
century. It is generally regarded as a bulwark of free
speech.”

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 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 a 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

– 10 –

point is cogently made in Winfield and Jolowicz on Tort 11th ed.,
(1979), p. 304 where this example is provided:

“To say that ‘A is a disgrace to human nature’ is an
allegation of fact, but if the words were ‘A murdered his
father and is therefore a disgrace to human nature’ the
latter words are plainly a comment on the former.”

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 B.B.C. Russian Service as a
probationer. The respondent was also employed at the relevant
time by the same service in the B.B.C. He is a Russian Jew. He
was much incensed by the appellant’s article, which he regarded as
racialist and anti-semitic. As Lloyd L.J. pointed out in his
judgment [1991] 1 Q.B. 102, 105.106, the main thrust of the article
was the importance of distinguishing between Russia on the one
hand, and Communism on the other. Having traced the history of
Russian broadcasting since the early 1970’s the article continued:

“But still, after three decades of gradually becoming aware
of the significance of Russian language broadcasting I
believe its general concept has never been set right. It
continues to reflect the fatal confusion of the West, which
has yet to clarify to itself whether it is threatened by
Russia or by Communism. We fail to understand that
Communism is as alien to the religious and national
aspirations of the Russian people as those of any other
nation.”

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

“This confusion further manifests itself in the policy of
recruitment for the Russian Service. While other services
are staffed almost exclusively from those who share the
ethnic origin of the people to whom they broadcast, the
Russian Service is recruited almost entirely from Russian-
speaking national minorities of the Soviet empire and has
something like 10 per cent. of those who associate
themselves ethnically, spiritually or religiously with Russian
people. However high the standards and integrity of that
majority there is no more logic in this than having a Greek
Service which is 90 per cent. recruited from the Greek-
speaking Turkish community of Cyprus.

“When broadcasting to other East European countries, we
recognise them to be enslaved from outside and better able
to withstand alien Russian Communism through our assertion

– 11 –

of their own national spirit and traditions. However, this
approach leaves room for flirting with Euro-communism or
‘socialism with a human (non-Russian) face’ as a desirable
future alternative, and well suits the Left in the West.

“Resisting the ideological advance of Communism by
encouraging anti-Russian feelings is of less obvious value
with a Russian audience. Making ‘Russian’ synonymous with
‘Communist’ alienates the sympathetic Russian listeners. It
stirs up social resentment in others against the Russians.
Making those words synonymous also makes sympathy for
Russia into support for the Communist system.

“In America the Reagan Administration recently appointed a
new Director to Radio Liberty, George Bailey, who
introduced a concept in broadcasting which is to oppose
Communism ideologically through Russian national spirit,
tradition and, most important, appreciation of religious
feelings. In other words, through relying upon and appealing
to those basic values which constitute the health of any
nation, indeed provide its only ideological immunity against
the spread of Communism.

“Predictably, Mr. Bailey very soon came under malicious
attack from the Left and particularly those in the State
Department who promote their own unfortunate brand of
detente of the airwaves: ‘If we stop telling the truth, they
might stop telling lies.’ Mr. Bailey’s approach must be
studied and followed by other broadcasting corporations not
least of all our own external services of the B.B.C.”

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.

      1. “Sir – Having read ‘Selecting the Right Wavelength to Tune
        in to Russia’ (Feb 13) I was shocked particularly by the part
        on alleged inadequacies of the B.B.C.’s Russian Service
        recruitment policies.

      2. “Mr. Vladimir Telnikoff says: ‘While other services are
        staffed almost exclusively from those who share the ethnic
        origin of the people to whom they broadcast, the Russian
        Service is recruited almost entirely from Russian-speaking
        national minorities of the Soviet empire.

      3. “Mr. Telnikoff must certainly be aware that the majority of
        new emigres from Russia are people who grew up, studied
        and worked in Russia, who have Russian as their mother
        tongue and have only one culture – Russian.

      4. “People with Jewish blood in their veins were never allowed
        by the Soviet authorities to feel themselves equal with
        people of the same language, culture and way of life.
        Insulted and humiliated by this paranoic situation, desperate

– 12 –

victims of these Soviet racialist (anti-Semitic) policies took
the opportunity to emigrate.

      1. “Now the B.B.C.’s Russian Service, as well as other similar
        services of other Western stations broadcasting to Russia,
        who are interested in new staff members (natives) employ
        those people in accordance with common democratic
        procedures interested in their professional qualifications and
        not in the blood of the applicants.

      2. “Mr. Telnikoff demands that in the interest of more
        effective broadcasts the management of the B.B.C.’s Russian
        Service should switch from professional testing to a blood
        test.

      3. “Mr. Telnikoff is stressing his racialist recipe by claiming
        that no matter how high the standards and integrity ‘of
        ethnically alien’ people Russian staff might be, they should
        be dismissed.

      4. “I am certain the Daily Telegraph would reject any article
        with similar suggestions of lack of racial purity of the
        writer in any normal section of the British media.

      5. “One could expect that the spreading of racialist views
        would be unacceptable in a British newspaper.”

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 B.B.C.’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 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, for the appellant, relies upon paragraphs numbered 6
and 7 of the letter, coupled with the final paragraph. In relation
to paragraph 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 B.B.C. should
vet employees before employment and reject those who were of
Jewish blood, regardless of their abilities.

As regards paragraph 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.

– 13 –

As regards paragraph 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 of
this paragraph and I agree with your Lordships that it failed. This
paragraph is giving the respondent’s interpretation of the
appellant’s views, 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 ed. (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 L.J. in his
judgment [1991] 1 Q.B. 102, 123, 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. 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 L.J.,
the defence of fair comment is based on the principle that a

– 14 –

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.

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 which 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 the case of
Kemsley v. Foot [1952] A.C. 362. 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,
at p. 357:

“We have pointed to your Press. It is widely read. Your
readers will, and the public generally can, know at what our
criticism is directed. It is not bare comment; it is
comment on a well known matter, much better known,
indeed, that a newly printed book or a once-performed
play.”

In the course of his speech Lord Porter said, at p. 355:

“If an author writes a play or a book or a composer
composes a musical work, he is submitting that work to the
public and thereby inviting comment. Not all the public
will see or read or hear it but the work is public in the
same sense as a case in the Law Courts is said to be heard
in public. In many cases it is not possible for everyone who
is interested, to attend a trial, but insofar as there is room
for them in the court, all are entitled to do so, and the
subject matter upon which comment can be made is
indicated to the world at large.

– 15 –

“The same observation is true of a newspaper. Whether the
criticism is confined to a particular issue or deals with the
matter in which it is in general conducted, the subject
matter upon which criticism is made has been submitted to
the public, though by no means all those to whom the
alleged libel has been published will have seen or are likely
to see the various issues. Accordingly, its contents and
conduct are open to comment on the ground that the public
have at least the opportunity of ascertaining for themselves
the subject matter upon which the comment is founded. I
am assuming that the reference is to known journal: for
the present purpose it is not necessary to consider how
criticism without facts upon which to base it is subject to
the same observation in the case of an obscure publication.”

As Lord Oaksey in his speech in the same case
pointed out, at pp. 360-361:

“The forms in which a comment on a matter of public
importance may be framed are almost infinitely various and,
in my opinion, it is unnecessary that all the facts on which
the comment is based should be stated in the libel in order
to admit the defence of fair comment. It is not, in my
opinion, a matter of importance that the reader should be
able to see exactly the grounds of the comment. It is
sufficient if the subject which ex hypothesi is of public
importance is sufficiently and not incorrectly or untruthfully
stated.”

In Kemsley’s case [1953] A.C. 345 it was ultimately
admitted on behalf of the appellant that the facts necessary to
justify comment might be implied from the terms of the impugned
article:

“. . . therefore the inquiry ceased to be – Can the
defendant point to definite assertions of fact in the alleged
libel upon which the comment is made? and becomes – Is
there subject-matter indicated with sufficient clarity to
justify comment being made? And was the comment
actually made such as an honest, though prejudiced, man
might make?” (Per Lord Porter, at p. 357).

Quite apart from the principle of the matter, an important
practical point is made by Lloyd L.Jin his judgment [1991] 1 Q.B.
102, 110, and repeated by Glidewell L.J. in his judgment, at p.
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 L.J., in
Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1
W.L.R. S05, 825:

“. . . the law of libel seems to have characteristics of such
complication and subtlety that I wonder whether a jury on
retiring can readily distinguish their heads from their heels.”

– 16 –

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 paragraph
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 the 7th paragraph.

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.

– 17 –

 

 

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